Date:
20130927
Docket:
IMM-12478-12
Citation:
2013 FC 990
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 27, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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MUSTAFA SAHIN
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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]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of the Refugee
Protection Division (RPD) dated October 23, 2012, which found that the
applicant was neither a Convention refugee nor a person in need of protection.
Background
[2]
The
applicant is a Turkish citizen of Kurdish ethnicity, born in 1979. He turned 19
in 1998 and normally should have started his compulsory military service, but
obtained a three-year deferment of military service to finish his studies. In
order to do so, he had to sign an agreement to the effect that he would
complete his service after his studies. He did not raise his conscientious
objection, fearing that he might be perceived as a terrorist.
[3]
In
2000 the end of his deferment was approaching, but he believed in non-violence
and did not want to serve or fight against his people. His father therefore
helped him leave Turkey on a student visa and join an older brother in
Switzerland. He attended a language school, but this could not count as
university studies for the purpose of obtaining an extension of the deferment. The
deferment expired in 2001. His Turkish passport expired in 2006. He obtained a
diploma in French in 2007. He then remained in Switzerland without status
because it was impossible for him to seek asylum in that country without being
deported to Turkey. In 2011, he took his brother’s passport and left for
Canada. He claimed refugee protection on the basis of his nationality, race,
and on the fact that he is a conscientious objector.
Impugned
decision
[4]
The
panel determined that there was not a serious possibility that the applicant
would be persecuted on the basis of his race and nationality. There is no
absolute or partial right to conscientious objector status and the fear of
prosecution for refusing to submit to compulsory military service does not
constitute a well-founded fear of persecution as per the definition of refugee.
The applicant has not established that he would face a danger of torture, a
risk to life, or a risk of cruel and unusual treatment or punishment, were he
to return to Turkey.
[5]
The
panel noted that the Federal Court restricted the definition of conscientious
objection in cases where refugee claimants refuse to participate in any
military actions. This applicant had not demonstrated any deep religious or
philosophical beliefs that led him to object to military service, or that he
belonged to an organization of conscientious objectors. He did not tell
military authorities that he refused to serve; he never publicly opposed
military service or war, and he benefitted from a law of general application
that allowed him to defer his service until after he had completed his studies.
He failed to show that, if he were convicted of draft-evasion or desertion, he
would be subject to additional punishment due to his status as a conscientious
objector. The possibility of receiving a maximum three-year sentence does not
constitute persecution in the absence of aggravating circumstances.
[6]
The
panel rejected the refugee claim.
Issues
[7]
The
issues are the following:
a. Was
it reasonable for the panel to conclude that the applicant was not a
conscientious objector?
b. Was
it reasonable for the panel to conclude that the penalties for evasion of
military service that is compulsory under a law of general application do not
constitute persecution?
Standard of
Review
[8]
Both
issues are reviewable on a standard of reasonableness (see for example Etiz
v Canada (Minister of Citizenship and Immigration), 2013 FC 308, at paras
16-17).
Analysis
1. Was
it reasonable for the panel to conclude that the applicant was not a
conscientious objector?
[9] In this case,
the applicant is seeking to avail himself of the third exception in Lebedev
v Canada (Minister of Citizenship and Immigration), 2007 FC 728 at
paragraph 14:
[14] Thus, an applicant
generally cannot claim refugee status under the United Nations Convention
Relating to the Status of Refugees (the Convention) – and accordingly,
under s. 96 of the IRPA, just because he does not want to serve in his
country’s army. According to Hathaway, however, there are three exceptions to
the general rule above. … The third and final exception applies to those with
“principled objections” to military service, more widely known as
“conscientious objectors”.
[10] The
applicant submitted that the RPD failed to examine the possibility of persecution
on the basis of his Kurdish origin, arriving at its conclusion without having
analyzed this point. I find that the applicant never claimed that he was
persecuted because of the fact that he was Kurdish – either in his written
narrative, or in his testimony at the hearing. As a result, the panel did not
need to dispose of that ground.
[11] The applicant
further argued that the RPD did not question him about his religious beliefs
during the hearing and that his allegations on this point were not contradicted.
[12] Given the oral
and documentary evidence, the Board reasonably concluded that the applicant is
not a conscientious objector. Its reasoning is based on the following:
a. The
applicant did not belong to an organization of conscientious objectors;
b. When
the applicant was first called up for compulsory military service, he did not
inform military authorities that he was a conscientious objector and that he
would refuse to serve in the army;
c. The
applicant complied with the Turkish law of general application. In fact, the applicant
benefitted from this law to obtain a three-year deferment to continue his
studies and thus postpone his military service. By acting in this way the
applicant acknowledged the legitimacy of the compulsory military service system
for at least three years;
d. The
applicant never publicly objected to having to serve in the army; and
e. The
applicant never took part in any anti-war demonstrations.
[13] The conclusion
of the Conclusion fell within a range of possible, acceptable outcomes having
regard to the facts presented.
2.
Was it reasonable for the panel to conclude that the penalties for evasion of
military service that is compulsory under a law of general application do not
constitute persecution?
[14] The applicant claimed the RPD disregarded
evidence that Kurdish draft-evaders had been beaten and mistreated in prison
and that several of them had died, as well as evidence that Turkish
draft-evaders can be prosecuted repeatedly, which can also amount to persecution.
[15] With regard to these allegations, I
agree with the respondent that the panel concluded that:
The Turkish law
requiring compulsory military service is a law of general application; the
claimant has offered no proof to substantiate his assertion that he would be
sentenced to an additional prison term as a Kurdish conscientious objector. On
the contrary, the documentary evidence indicates that he would be sentenced in
the same way as all other draft evaders. The possibility of the claimant being
imprisoned for up to three years is not persecution, as the Federal Court has
recognized.
[16] In Ates
v Canada (Minister of Citizenship and Immigration), 2005 FCA 322, the
Federal Court of Appeal determined that prosecutions and incarcerations of a
conscientious objector for refusing to do his military service does not constitute
persecution based on a Convention refugee ground.
[17] In this case, the Board did not accept
that the applicant was a conscientious objector or that he would face consequences,
other than legal prosecution, if he refused to complete his military service.
The Board found that the applicant would not face a risk if he were to return
to Turkey, and rejected the section 97 claim.
[18] This Court has already ruled that the
possibility of being imprisoned for up to three years in such circumstances does
not amount to persecution and that the fact that Turkish prisons are not of the
same standard as Canadian prisons does not rise to the level of torture or risk
to life or risk of cruel and unusual punishment. (See for example Ozunal v
Canada (Minister of Citizenship and Immigration)), 2006 FC 560, at para 28.)
Findings
[19] The Board is entitled to considerable
deference. It reasonably found that the evidence adduced by the applicant to
rebut the negative findings and to support his allegations did not succeed in
doing so. The Board reasonably determined that the applicant would not face a
risk upon his return, even if he were to be perceived as being a conscientious
objector.
[20] For these reasons, the application is dismissed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review is dismissed.
“Peter Annis”
Certified
true translation
Sebastian
Desbarats, Translator
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