Date: 20140314
Docket:
IMM-4388-13
Citation: 2014 FC 249
Ottawa, Ontario, March 14, 2014
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
|
YILMAZ INCE
CIGDEM INCE
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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 ORDER AND ORDER
Upon an
application made pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the “Act”) challenging a decision of the
Refugee Protection Division (the “RPD”) of May 16, 2013 which concluded that
the applicants are not Convention refugees and are not persons in need of
protection according to sections 96 and 97 of the Act;
Upon
reviewing the Court record and hearing the parties;
Upon
reviewing the case law submitted by the parties;
[1]
The Court dismisses the application for judicial review
for the following reasons.
[2]
The applicants, who are husband and wife, are Turkish
citizens of Kurdish ethnicity and Alevi faith. They have been married since
April 2010.
[3]
They obtained American visitor visas in January and February
2012. A few months later, on June 15, 2012, both applicants left Turkey for the United States and they arrived in New York City. Four days later, they left New York City for Plattsburg, New York. They crossed the border at Lacolle, Quebec, Canada on June 22, 2012, and claimed refugee status four days later, on June 26,
2012.
[4]
The RPD concluded that the issue to determine was
whether or not the applicants suffered persecution while in Turkey. The RPD concluded that such was not the case. Furthermore, the RPD concluded that
there is not a reasonable chance or serious possibility that the claimants
would be persecuted should they return to Turkey. Indeed, they would not be
subjected to a risk to their lives or to a risk of cruel and unusual treatment
or punishment, which is the test to be satisfied in order to determine that the
person is in need of protection.
[5]
In coming to that conclusion, the RPD examined the
evidence presented by the applicants who were considered to be credible. At the
end of the day, the RPD was of the view that the discrimination and harassment
suffered by the applicants did not rise to the level of persecution. In order
to be successful, the applicants must satisfy this Court that such a decision
is not reasonable in that it falls outside of the margin of appreciation within
the range of acceptable and rational solutions. As the Supreme Court of Canada
put it in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:
[47] …
A court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[6]
In this case, the applicants complain of discrimination
and harassment because of their faith and ethnicity. It is described in general
terms with one incident more specific having taken place in 2011 when the
husband would have been detained for three days, after having been arrested
with two friends. As for the wife, she refers to the fact that the family
house, when she was still a youngster, was burnt down by the Turkish
authorities, back in 1994. The RPD concludes that these facts alone do not rise
to the level of persecution which requires, in the view of the RPD, sustained
or systematic violation of basic human rights demonstrative of the failure of
State protection (Hathaway, James C., The Law of
Refugee Status, Toronto: Butterworths, 1991, as referred to by the Supreme
Court of Canada in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689). Thus, the RPD describes the test as follows at paragraph 12:
[12] …
What distinguishes persecution – whether from discrimination or non-persecutory
discrimination – is the degree of seriousness of the harm. Another criterion of
persecution is that the inflicting of harm occurs with repetition or
persistence, or in a systematic way, and an isolated infliction of harm can
only in very exceptional circumstances satisfy the element of repetition and
relentlessness found at the heart of persecution.
Accordingly, the
RPD declines to find in favour of the applicants.
[7]
The case for the applicants on this application is
based on their contention that the RPD failed to consider all the evidence
adduced. No one disputes that the test to be applied was properly discussed by
the RPD. It is rather that the whole of the evidence was misapprehended by the
decision-maker. The applicants also contend that the weight of a decision of
the European Court of Human Rights (ECHR) awarding the father of Cigdem Ince 4,000
euros as moral damages for the destruction of his house was minimized by the
RPD and should not have been considered to be an indirect persecution as far as
one of the applicants is concerned.
[8]
With respect, I find the conclusion reached by the RPD
to be reasonable.
[9]
It is not disputed that discrimination and harassment can rise to the
level of persecution. The cumulative effect has to be taken into account.
However, in this case, there is no cumulative effect to reach the level of
persecution to be had. In effect, the applicants speak of discrimination
throughout their lives in spite of the fact that they both went to school,
Yilmaz Ince even earning a university degree. Then, Yilmaz Ince alleges one
specific incident in 2011 and his wife argues that the destruction of the
family house twenty years ago constituted persecution. It has not been shown
that the RPD conclusion that the evidence adduced does not amount to
persecution does not fall within a spectrum of acceptable outcomes. The same
kind of conclusion was reached by Justice Simon Noël in Smirnova v The Minister
of Citizenship and Immigration, 2013 FC 347, where we can read at paragraphs
24 and 25:
[24] In
the case at bar, the RPD did take into account the cumulative nature of the
attacks and ethnic slurs the Applicants received when assessing whether the
treatment they endured amounted to persecution. In its decision, reference is
made to the incident that occurred in 1999, to the Principal Applicant’s
different employments, the 2005 incident involving her supervisor and the
incident in October 2008, when she had an argument with a co-worker and was
beaten by RNU nationalists.
[25] The RPD did not make any mistake as it did consider whether
the aggregate of all these incidents gave rise to cumulative persecution, even
though the credibility of the Principal Applicant with regards to some of them
is questionable. It correctly considered the Applicants’ situation in light of
the concepts of discrimination and persecution and determined that the
incidents they suffered constitute discrimination but that the treatment they
suffered does not reach the level of persecution. The conclusion reached by the
RPD falls within the range of acceptable outcomes in fact and law.
[10]
Incidents, however painful, that have taken place 20 years ago will have
a limited probative value as to what the future reserves. As presented by the
applicants, it is as if the burning down of the family house twenty years ago
could be evidence of persecution, without more, going forward. As is well
known, the risk assessment that had to be made is not retrospective, but rather
prospective (Ortega et al. v The Minister of Citizenship and Immigration,
2011 FC 657).
[11]
In view of my conclusion on the 1994 burning down of the family house,
it is not necessary to comment any further on the notion of indirect
persecution. Suffice it to say that I would have been satisfied with the
analysis done by my colleague Justice Cecily Strickland in El Achkar v The Minister
of Citizenship and Immigration, 2013 FC 472. As for the decision of the
ECHR, nothing in my view rides on this decision. In my estimation, that
decision has no bearing on this case before the RPD. The applicants have not
shown the assessment made by the RPD was unreasonable.
[12]
As a result, the application is dismissed. There are no
questions for certification.
ORDER
THIS COURT ORDERS that the application
for judicial review is dismissed. There are no questions for certification.
“Yvan Roy”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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IMM-4388-13
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STYLE OF CAUSE:
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YILMAZ INCE, CIGDEM INCE v THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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PLACE OF HEARING:
Montréal, Quebec
DATE OF HEARING:
march
12, 2014
REASONS FOR
ORDER AND ORDER:
ROY
J.
DATED:
March
14, 2014
APPEARANCES:
Rachel Benaroch
|
For The ApplicantS
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Thomas Cormie
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For The Respondent
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SOLICITORS OF RECORD:
Rachel Benaroch
Montréal, Quebec
|
For The ApplicantS
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William F. Pentney
Deputy Attorney General of Canada
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For The Respondent
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