Docket: IMM-4591-13
Citation:
2014 FC 1151
Ottawa, Ontario, November 28, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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EMINE GULAL, ERCAN GULAL,
and NESIL GULAL
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review of
the June 24, 2013 decision (the Decision) of the Refugee Protection Division of
the Immigration and Refugee Board (RPD) finding the Applicants to be neither
Convention refugees nor persons in need of protection under sections 96 or 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
II.
Facts
[2]
The Applicants, Ercan Gulal (the Applicant) and
his wife Emine Gulal, are citizens of Turkey who claim to be Convention
refugees due to their political opinions and activities, their ethnicity
(Kurdish) and religious beliefs (Alevi). The third Applicant is their
four-year-old daughter (Nesil Gulal) who is also a citizen of Turkey.
[3]
Before coming to Canada, the Applicant was
involved in Kurdish and left-wing political parties (HADEP, DEHAP, DTP and
BDP). According to his Personal Information Form (PIF) narrative, the Applicant
was beaten, tortured and detained several times by Turkish authorities and
anti-Kurdish radicals.
[4]
In his PIF narrative, the Applicant alleges that
he was beaten by anti-Kurdish radicals at least five times while leaving a
coffee shop after political meetings. The Applicant alleges that he was beaten
twice with a wooden stick. He allegedly has scars on his arm and forehead due
to these beatings. The Applicant alleges that he could not complain to the
police because the police do not protect Kurdish political militants.
[5]
The Applicant also alleges in his PIF narrative
that he was persecuted by Turkish authorities and was: (i) detained for a day
and beaten on May 1, 2009; (ii) detained for three days and tortured during the
third week of December 2009; (iii) detained for two days and tortured beginning
on September 1, 2010; and (iv) detained for two days and tortured on March 21,
2011.
[6]
Based on a death threat made against the
Applicant upon his release in March 2011, the Applicant and his wife decided to
leave Turkey. The Applicants fled to the USA first as it was impossible to get
a visa for Canada. While the Applicants got their visa on June 30, 2011, they
did not leave Turkey until October 14, 2011.
III.
Decision
[7]
The Applicant’s lack of credibility concerning
his political activities and the alleged beating and detentions led the RPD to
find that the Applicants are not Convention refugees or persons in need of
protection pursuant to sections 96 and 97 of the IRPA. Moreover, the RPD
considered that the Applicants do not need protection on the sole basis of
their profile as Kurdish and Alevi.
[8]
The RPD found the Applicant not credible for the
following reasons:
1.
While the Applicant mentioned at paragraph 7 of
his PIF narrative that he was beaten at least five times at a coffee shop, he
stated at the hearing that he was beaten severely only twice before finally
stating that he was beaten exactly five times. The RPD noted that the Applicant
could not explain these inconsistencies and drew “minor”
negative inferences as a result.
2.
While the Applicant testified that he saw a
doctor and received medical treatment for the beatings, he could not provide
any medical document to support this allegation. Moreover, the Applicant did
not mention that medical treatment in his PIF, even though section 31 of the
PIF instructs a refugee claimant to indicate if he has received medical
treatment. Therefore, the RPD found this allegation of medical treatment to be
an embellishment of the Applicant’s allegations.
3.
The Applicant could not recall when the first of
his alleged four detentions in Turkey took place. When the RPD asked him the
question a second time, he remembered the year the detention happened but not
the month.
4.
When the Applicant was asked when his second
detention was, he first mentioned that it was on September 1, 2010. When asked
to confirm this date he added that there was another detention between the
first detention and September 1, 2010. The Applicant was able to confirm the
date of this intermediate detention only when the RPD informed him that,
according to his PIF narrative, it happened in the third week of December 2009.
5.
While the Applicant initially stated at the
hearing that he was detained for two days in the third week of December 2009,
he stated in his PIF narrative that this detention lasted three days. The
Applicant confirmed that the period of the detention was three days only after
being reminded of what he said in his PIF.
6.
The RPD noted that the Applicant submitted a
medical note during the hearing with respect to the alleged detention of
September 1, 2010. However, the RPD had the following concerns about this
document:
a.
The Applicant did not provide the original of
this report.
b.
While the Applicant’s counsel stated that he
received the report by e-mail, he was unable to produce this e-mail.
c.
While the Applicant allegedly received this
report in September 2010, his father allegedly found it just a few days before
the hearing.
d.
This report indicates the Applicant’s birth date
correctly, which would have made him 23 when the report was written. However,
this report indicates that the Applicant was 26 when he sought medical
assistance.
e.
Finally, the Applicant did not mention this
medical treatment in his PIF narrative.
7.
The Applicants received their visas to the USA on June 30, 2011, but did not leave Turkey until October 14, 2011. While the Applicant indicated
that he had to stay in Turkey to sell some land to pay his agent, he could not
provide any documents to corroborate those allegations. When asked why he did
not pay his agent from the USA, the Applicant answered that his agent held
their passports until the payment was made. However, the Applicant did not
mention this explanation in his PIF.
8.
The Applicant submitted very shortly before the
hearing a letter from a lawyer claiming that he assisted the Applicant
pertaining to his problems with the authorities of Turkey. However, the
Applicant did not provide the original of the letter. Additionally, the
Applicant did not mention in his PIF narrative that he engaged a lawyer in Turkey, even though section 31 of the PIF requests the details of any step taken to obtain
state protection.
[9]
The RPD also concluded that the Applicants do
not require Canada’s protection simply because they are Alevi and Kurdish.
[10]
After reviewing the country documentation the
RPD found that Kurds who aggressively advocate Kurdish rights might face
persecution. However, the panel did not believe this to be the case for the
Applicant and found, therefore, that “there is not a
serious possibility of the claimants being persecuted because they are
Kurdish.”
[11]
With regard to the Applicant’s religion, the RPD
noted, based on the country documentation, that while there are millions of
Alevi in Turkey, a small number of attacks against them are alleged. Therefore,
the RPD concluded that there is no serious possibility that the Applicants
would be persecuted because they are Alevi, “even in
association with being Kurdish.”
IV.
Issues
[12]
This matter raises the following issues:
1.
Did the RPD err in assessing the Applicant’s
credibility?
2.
Did the RPD err in considering the evidence?
3.
Did the RPD fail to undertake a forward-looking
analysis to assess the likelihood of persecution?
In my opinion, these questions can be
answered in one single analysis by determining whether the RPD reasonably found
the Applicants not to be Convention refugees pursuant to section 96 of the IRPA
or persons in need of protection pursuant section of the 97 IRPA.
V.
Analysis
A.
Standard of review
[13]
In the present case, the issues in dispute are
questions of mixed fact and law to be reviewed under the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9). In addition, it
is clearly established that the standard of review applicable to the assessment
of credibility is reasonableness (Suntharalingam v Canada (Citizenship and Immigration), 2014 FC 987, at para 29). Significant deference
is due on the findings of a tribunal in matters of credibility (Rahal v Canada (Citizenship and Immigration), 2012 FC 319, at para 22).
B.
Is the decision reasonable?
[14]
The Applicant submits, that “unless there are inherent contradictions in a claimant’s
evidence, or a direct conflict with the documentary evidence, a claimant’s
evidence must be considered credible” (Lachowski v Canada (Minister of Employment and Immigration), (1992), 18 Imm. L.R. (2d) 134 at 144).
However, as argued by the Respondent, “presumption of
truth may be rebutted where evidence is not credible or is implausible”
(Veloz Gudino v Canada (Citizenship and Immigration), 2009 FC 457, at
para 18).
[15]
The Applicant submits that the RPD erred in
making an adverse credibility finding because he was unable to remember the
date of the first detention. I disagree with the Applicant. The transcript of
the hearing indicates that he was even unable to remember the month of his
first detention. While this detention constitutes one of the key facts that
allegedly led the Applicant to leave his country, it seems that he was unable
to indicate around what time of the year it happened. This is reasonable
support for the RPD’s conclusion that the Applicant “simply
failed to memorize his story properly.”
[16]
While the Applicant stated at the hearing that
he was beaten severely twice and was beaten five times in total, he stated in
his PIF that he was beaten “at least five times
severely.” The Applicant argues that the RPD’s focus on this distinction
overlooked the more important issue in the present case, namely the fact that
Turkish authorities have beaten the Applicant. However, the RPD acknowledged
that the negative inferences it drew with regard to these inconsistencies were “minor ones because of the legitimate possibility of some
confusion over the wording.” In my opinion, the RPD reasonably weighed
the effect of these inconsistencies on the Applicant’s overall credibility. It
is important to bear in mind the cumulative effect of these inconsistencies and
the others highlighted by the RPD. Together, they show that there were problems
with the Applicant’s ability to prove any of the various beatings and
detentions that he alleged. I do not accept the Applicant’s argument that the
RPD’s negative inferences at the beginning of the hearing with regard to the
alleged beatings had a polluting effect on the RPD’s analysis of the
Applicant’s other allegations of mistreatment.
[17]
The Respondent submits, and I agree, that the
Applicant did not provide enough corroborative evidence to support his claim,
in light of the inconsistencies. In the present case, the Applicant did not
document his four arrests. Moreover, the Applicant alleges that he and his
family were forced to stay in Turkey after obtaining visas to the USA because he had to sell a land to pay his agent $16,000. However, the Applicant did not
document the sale of the land in any way. This was important because this sale
of the land was the reason asserted by the Applicant for not leaving Turkey sooner. Without the explanation, one is left with the fact that the Applicant
voluntarily delayed his departure. This suggests that he was not genuinely
fearful. The conclusion of the RPD that the story of the sale of land was
another embellishment at the hearing was entirely reasonable.
[18]
Furthermore, there were credibility concerns
with respect to the Applicant’s medical report as mentioned above. I agree with
these concerns. Even though each individual concern may seem minor, their
cumulative effect is important. The applicant was given a clear opportunity to
produce the email to which the report was allegedly attached, but it was never
submitted to the RPD.
[19]
The Applicant argues that a letter from the BDP
confirming that he was a supporter of BDP was unreasonably dismissed. In my
view, it was reasonable for the RPD to give the letter little weight in light
of the overall credibility concerns.
[20]
The Applicant also challenges the RPD’s
dismissal of his fears should he be deported to Turkey as a failed refugee
claimant. However, the Applicant has not cited any evidence that such fear is
well-founded.
[21]
The Applicant argues that the RPD failed to
conduct a forward looking analysis by failing to turn his mind to the
likelihood of future mistreatment. I disagree with the Applicant. The RPD
considered the evidence to determine whether the Applicants would be subject to
persecution if they returned to Turkey because they are Kurdish and Alevi. The
RPD reasonably concluded that the above-mentioned credibility problems lead to
the conclusion that the Applicant failed to demonstrate that he may face
persecution because of his political profile. The RPD then considered the
Applicant’s ethnicity and religious beliefs distinct from any political
activity. Having considered the Applicant’s arguments on this issue, I am not
satisfied that the RPD’s analysis was inadequate, insufficient or unreasonable.
The Applicant’s arguments were heavily reliant on persecution against Kurds in Turkey who are politically active. However, based on its negative credibility findings, the
RPD’s analysis was concerned with Kurds who are not politically active.
VI.
Conclusion
[22]
In my opinion, this appeal should be dismissed.
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