Docket: IMM-5928-13
Citation:
2014 FC 674
Ottawa, Ontario, July 9, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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AHMED OZBAY
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
UPON a judicial
review application made with respect to a decision of the Refugee Protection Division
of the Immigration and Refugee Board of Canada [RPD] made on July 30, 2013;
[2]
AND UPON the
RPD’s dismissal of the application made pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA];
[3]
AND UPON hearing
the parties, reviewing the record and considering further the judicial review
application made pursuant to section 72 of the IRPA;
[4]
The Court concludes that the judicial review
application must be dismissed for the reasons that follow.
[5]
The applicant is a Turkish citizen. He met his
wife in 1994, as she was residing with her uncle who, according to her, was
abusive towards her. Her parents were living in the United States at the time
and have continued to do so. It is the applicant’s mother who gave shelter to
the person who would become the applicant’s wife. That started in April 1994
and was followed, according to the applicant and, to some extent, his wife, by a
number of death threats and attacks against the applicant. These have been
described as death threats in the nature of honour killings, a phenomenon that
is known to happen in Turkey.
[6]
The couple had a daughter in 1996. That same
year, the applicant travelled to the United States for the purpose of
persuading the parents of the mother of his child to allow a marriage to take
place, but also with the view to gaining status in the United States. Although the mother would have been amenable to a marriage, it appears that
the father did not provide his consent. Having consulted an American lawyer,
the applicant was advised that he could not get asylum in the United States because he had gained access to the country using a false passport. Following
the denunciation made by his spouse’s brothers, he was expelled from the United States in December 2004, some eight years after arriving in the United States.
[7]
Fourteen months later, in January 2006, the
applicant claims that a cousin of his spouse attacked him and stabbed him in
the hand in a café.
[8]
A second child was born later in 2006.
[9]
The applicant’s spouse and their two children
obtained permanent residence in the United States in 2009. It appears that they
were sponsored by the father who had refused to give his consent to the
marriage with the applicant. Shortly thereafter, in July 2009, the applicant’s
spouse and their two children returned to Turkey. On August 6, 2009, the
applicant and the mother of their two children married. It seems that only the
mother’s consent was obtained for the marriage to take place, as it was done
without the father’s knowledge. It appears that the applicant’s wife and their
two children went back to the United States because they came back again to Turkey in July 2010 and visited the village where, apparently, the applicant was residing.
On August 14, 2010, one of his wife’s cousins, the same who apparently stabbed
the applicant in January 2006, shot at him with a firearm while the applicant
was working in the field. Evidently, the shots did not hit their target and the
applicant would have filed a complaint with the police, which complaint was not
followed up according to the applicant.
[10]
Following that latest incident, the applicant
left his home on August 20, 2010 and went to a friend’s home in Istanbul. He claimed that he changed residences on a regular basis in order to avoid being
found. His wife and two children returned to the United States in September
2010.
[11]
Having been deported from the United States in 2004, the applicant chose to seek a Canadian visa which he obtained on
December 8, 2011. A week later, on December 15, 2011, the applicant was
arriving in Canada and he sought refugee protection on January 12, 2012.
[12]
Thus, to summarize, the applicant lived in the United States between 1996 and 2004, before being returned to his country of nationality
where he stayed for seven years. During that time, his wife lived in Turkey until 2009 when she was able to become a permanent resident of the United States, where her
parents had been since at least 1994. While a permanent resident of the United States, starting in 2009, she came back twice to Turkey, including once to get married to the
applicant.
[13]
It is not disputed in this judicial review
application that the applicant does not qualify under section 96 or the IRPA
because there is no nexus with any of the five Convention grounds. Rather, the
RPD considered the application on the basis of section 97.
[14]
The RPD found the credibility of the applicant
to be failing. It found that the applicant contradicted himself on a number of
occasions and with respect to essential elements of his claim; it also
concluded that the applicant sought to adjust and embellish his testimony
before the RPD; indeed, the RPD was of the view that there were numerous
implausibilities and that the behaviour shown by the applicant was not
consistent with that of a person who fears for his life.
[15]
In view of those findings, the RPD did not
discuss some other evidence that had been presented on behalf of the applicant.
The lack of credibility was enough, in the view of the RPD, to conclude that
there was no serious possibility that he would be personally subjected to
torture or a risk to his life if he were to return to Turkey.
[16]
The applicant put forth two arguments in support
of his contention that judicial review ought to be granted. First, he claimed
that the RPD ignored a significant portion of the evidence which would tend to
demonstrate his fear of persecution. Second, he claimed that the RPD erred in
its determination that the testimony was not credible. Counsel for the
applicant did not press the second issue at the hearing of the judicial review
application. Rather, it is counsel for the respondent who spent most of his
time showing, in a persuasive manner in my view, that the claimant’s testimony,
and his story altogether, was not credible. At the very least, the finding made
by the RPD is reasonable, as the notion is understood since the decision of the
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9; [2008]
1 SCR 190:
[47] … 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.
[17]
In my view, it was perfectly reasonable to
conclude that the version of events given by the applicant was not credible.
The death threats, in the nature of honour killings in Turkey, that would have
been made by the uncle and family of the applicant’s wife, against both the
applicant and his wife, did not make the applicant’s wife leave Turkey for the
United States, where her parents were already residing, for fifteen years
(between 1994 and 2009). Indeed, the applicant stayed in the United States for eight years before, in 2004, being expelled from the United States. He stayed in Turkey for seven years while his wife, with their two children, became a permanent resident of the United States in 2009. There is no documentary support for the alleged incidents, including
the applicant’s stabbing in 2006 and firearms shot in his direction in 2010.
[18]
No one disputes that there are honour killings
or attacks in Turkey. However, that does not support the contention put forward
by the applicant, that, in his circumstances, this is what had taken place.
[19]
The applicant contends that other evidence
submitted to the RPD was not considered by the RPD which, in the view of the
applicant, would suffice for this Court to intervene and send the matter back
for a redetermination. In my view, that contention faces an insurmountable
obstacle in the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381 [Sellan].
Paragraphs 3 and 4 of the decision are, in my view, dispositive of this case:
[3] In our view, that question should be
answered in the following way: where the Board makes a general finding that the
claimant lacks credibility, that determination is sufficient to dispose of the
claim unless there is independent and credible documentary evidence in the
record capable of supporting a positive disposition of the claim. The claimant
bears the onus of demonstrating there was such evidence.
[4] This leads to the question of
whether there was in the record before the Board any evidence capable of
supporting a determination in the respondent’s favour. In our view, there was
clearly no such evidence in the record. We are satisfied that had the Judge
examined the record, as he was bound to, he would no doubt have so concluded.
In those circumstances, returning the matter to the Board would serve no useful
purpose.
[20]
I believe that such is the case in the matter at
hand. The story, as told by the applicant, lacked credibility. Furthermore, it
is not disputed that honour killings, or attacks, happen in Turkey. But such is not the issue. As for other evidence and in particular the evidence led
by the applicant’s wife, it was dealt with adequately by the RPD. It is clear
from the reasons of the RPD that the version given by the applicant’s wife was
considered and the RPD concluded that it was not credible either. The RPD seems
to have taken issue with her lack of fear for a period of fifteen years prior
to her leaving for the United States; in spite of the alleged fear, not only
did she stay in Turkey in spite of her parents living in the United States, but
she and their two children came back to Turkey twice after gaining permanent
residence in the United States. That is not the behaviour of someone who fears
for her life concluded the RPD. That is reasonable.
[21]
It is for the RPD to determine the plausibility
of testimonies (Aguebor v (Canada) Minister of Employment and Immigration
(1993), 160 NR 315 (FCA)). While it is certainly true that a claimant’s
allegations are presumed to be true (Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302 (CA)), that presumption will
of course be rebutted by inconsistencies and contradictions in testimonies, and
the overall implausibility of the story. That would be so “if the facts as presented are outside the realm of what could
reasonably be expected” (Valtchev v Canada (Minister of Citizenship
and Immigration), 2001 FCT 776).
[22]
The applicant tried to make hay out of the
documentary evidence that confirms the existence of honour killings in Turkey and the prevalence of corruption in law enforcement.
[23]
The lack of credibility of the applicant and his
wife was fatal to the claim. General documentary evidence, in the face of a
version of events that is not believed, will not be sufficient to turn the
tide.
[24]
The issue in this case is not whether or not the
applicant is married, or whether honour killings are known to happen in his
country of nationality. It is rather whether or not he has been subjected to
the risks he claims. The RPD did not make any reviewable error in its
assessment of the credibility of witnesses and the plausibility of the version
of events given.
[25]
As a result, the application for judicial review
is dismissed. There is no serious question of general importance.
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