Date: 20131021
Docket: IMM-11458-12
Citation: 2013 FC 1056
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, October 21, 2013
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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IBRAHIM
BAYRAK
YILDIZ
BAYRAK
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Applicants
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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]
How often in one lifetime should a human being be subjected
to aggressive acts, beaten, insulted, humiliated, degraded and treated like an
inferior creature, rather than feeling the dignity that one is entitled to feel
by virtue of having been born with intrinsic human worth?
[2]
This is an application for judicial review of a decision of
the Refugee Protection Division [RPD] of the Immigration and Refugee Board.
[3]
Since their childhoods, the applicant and his wife have
hidden their Kurdish identity and Alevi religion in Turkey to avoid being
subjected to acts of discrimination and harassment.
[4]
Each act of discrimination to which they were subjected was
but one act; each incident of harassment was but one incident; however, over a
sixty-year period, when is enough, enough?
[5]
The inviolability of the human person is not an aspiration;
it is a fact accepted by the majority of civilized countries, the States that
have signed the United Nations’ Universal Declaration of Human Rights,
1948, inspired by the most deeply held convictions of most of the civilized
States after the Second World War with its gas chambers. The Universal
Declaration of Human Rights was drafted by a team led by René Cassin, who
remembered not only the genocide of the Second World War, but also the genocide
of the Armenians in the early twentieth century in Turkey itself.
[6]
In the case before this Court, certain acts of harassment
could have been categorized as distinct, separate in time and space, from the
cumulative discrimination and collective harassment of a population targeted by
the Turkish government’s agents of persecution; however, when we look at it
cumulatively, all together, when is enough, enough?
[7]
That the couple left Turkey, only to return on account of
ageing parents several years ago, and that their son continued to live in the
family home, in no way alters the fact that the couple was subjected to acts of
discrimination that were sporadic, but ongoing, throughout their lives.
[8]
There is a continuity to these ongoing sporadic acts that
should not be tolerated by a civilized society, a signatory to the Universal
Declaration of Human Rights and the 1951 Convention Relating to the
Status of Refugees [Convention].
[9]
The Convention itself recognizes that discrimination may,
in and of itself, with time and repetition, constitute persecution.
[10]
Before the genocide of the Jews and the Romani reached its
apex in the concentration camps, Adolph Hitler himself said that, if the world
had forgotten the Armenians (their genocide by the Turks), it would also forget
the Jews.
[11]
The civilized world cannot turn a blind eye while these
types of acts are perpetuated, lest its silence make it complicit in crimes against
humanity involving gratuitous assaults on minorities.
[12]
The case of this couple before the Court is an example of
this and is the Convention’s very raison d’être. So, according to the
Convention, when is enough, enough?
[13]
As the proverb wisely states, to forget our history is to
repeat it. The Convention is in place to help us prevent such acts from being
perpetrated repeatedly.
[14]
The history of events recounted by the couple is
uncontradicted; nowhere in the RPD decision is there a single word challenging
the couple’s story. Therefore, no doubts are raised about the couple’s
credibility.
[15]
The RPD notes at paragraph 15 of its decision that “the
series of events experienced by the claimants during their sixty years of
residency in Turkey, possibly, are evidence of discrimination and harassment to
which Alevi/Kurds are subjected; however, in the opinion of the Tribunal, such
events do not cumulatively constitute persecution”.
[16]
As explained by counsel for the applicants, these incidents
included the following:
[translation]
7. After his
liberation, the applicant lived in constant fear, became depressed, believed he
was being constantly watched and suffered from nightmares; the applicant had a
great deal of difficulty resuming a normal life.
[17]
The Court finds that the accumulation of these
uncontradicted, repeated acts of discrimination and harassment, taken together
and as a result of a multiplier effect, constitutes persecution by government
authorities.
[18]
On the basis of the cumulative effect, the Court finds that
this was persecution within the meaning of the Convention, and, with age and
the vulnerability that comes with the weakness of age, the dangers and risks to
their persons are becoming increasingly serious (Nejad v Canada (Minister
of Citizenship and Immigration)), [1997] FCJ no 1168).
[19]
The Court also takes particular note of Sagharichi v
Canada (Minister of Employment and Immigration) (1993), 182 NR 398 (FCA),
in which the Federal Court of Appeal held that some mistreatment can be
considered persecution on the basis of its seriousness (see also Naikar v
Canada (Minister of Employment and Immigration), [1993] FCJ no 592
(QL/Lexis); Iruthayanathar v Canada (Minister of Citizenship and Immigration),
[2000] FCJ no 1097 (QL/Lexis); Thirunavukkarasu v Canada (Minister
of Employment and Immigration), [1994] 1 FC 589 (CA)). In Porto v Canada
(Minister of Employment and Immigration), [1993] FCJ no 881
(QL/Lexis), the Court held that the definition of “discrimination” was
inadequate to cover conduct that included acts of violence and death threats:
[8] . . . The
“discrimination” which it mentions should have been analyzed to determine
whether the acts underlying it could constitute persecution. This is especially
the case when we consider that the “discrimination” in question embraced acts
of violence and death threats. At first sight, the word “discrimination” is a
very inadequate description of the nature of the acts described by the
applicant and which the Division had to examine.
[20]
Paragraph 55 of the Handbook and Guidelines on
Procedures and Criteria for Determining Refugee Status states the
following:
55. Where measures of
discrimination are, in themselves, not of a serious character, they may
nevertheless give rise to a reasonable fear of persecution if they produce, in
the mind of the person concerned, a feeling of apprehension and insecurity as
regards his future existence. Whether or not such measures of discrimination in
themselves amount to persecution must be determined in the light of all the
circumstances. A claim to fear of persecution will of course be stronger where
a person has been the victim of a number of discriminatory measures of this
type and where there is thus a cumulative element involved.
[21]
Regarding objective documentation, according to the United
States Department of State’s 2010 Country Reports on Human Rights Practices:
Turkey, April 8, 2011, Exhibit P-1:
Human rights organizations
continued to report cases of torture and abuse in detention centers and prisons
during the year. They alleged that torture and abuse largely occurred outside
of detention centers in more informal venues where it was harder to document.
In its report for the year, Amnesty International (AI) noted that
investigations into human rights violations by police were largely ineffective
and that instances of bringing officials to justice were rare. The UN Committee
against Torture (UNCAT) stated in its November report that it was “gravely
concerned about numerous, ongoing, and consistent allegations concerning the use
of torture, particularly in unofficial places of detention.”
The HRF reported that courts
investigated allegations of abuse and torture by security forces during the
year. However, they rarely convicted or punished offenders. Authorities
typically allowed officers accused of abuse to remain on duty during their
trials. UNCAT reported in November that it was “concerned at the continuing
failure of authorities to conduct effective, prompt and independent
investigations into allegations of torture and ill-treatment.”
[22]
Therefore, this couple still has an objective fear with
respect to future risk and mistreatment (see Kuccuk v Canada (Minister of
Citizenship and Immigration), 2012 FC 500, 408 FTR 225).
[23]
Like in Kuccuk, above, the Court finds the
following:
[22] It is clear from the
evidence cited by the RPD that the applicant would be at risk if he returned to
Turkey. The RPD’s finding is not supported by the documentary evidence cited by
it.
. . .
[24] Upon reading the
decision, it is obvious that the RPD failed to draw a link between the
applicant’s subjective circumstances described in his testimony and the
objective nature of the fear which was supported by the documentary evidence
cited by the RPD. . . .
[24]
Because the RPD did not question the credibility of the
applicants’ testimony, the subjective evidence remains corroborated by the
objective evidence.
[25]
For all of these reasons, the application for judicial
review is allowed, and the matter is referred back for redetermination by a
differently constituted panel.
JUDGMENT
THE COURT ORDERS that the applicants’ application for judicial review be allowed and that the
matter be referred back for redetermination by a differently constituted panel.
There is no question of general importance to be certified.
“Michel
M.J. Shore”
Certified true translation
Francie Gow, BLC, LLB
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