Docket:
IMM-6236-13
Citation: 2014 FC 334
Ottawa, Ontario, April 4, 2014
PRESENT: The
Honourable Mr. Justice Simon Noël
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BETWEEN:
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ERSIN ARPA
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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 ORDER AND ORDER
I. Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision rendered on August 29, 2013 by Edward Aronoff of the
Immigration and Refugee Board’s Refugee Protection Division [RPD] finding that
Ersin Arpa is neither a “refugee” within the meaning of section 96 of the IRPA nor a “person in need of protection”
under section 97 of the IRPA.
II. Facts
[2]
The Applicant is a 27-year-old citizen of Turkey. He is a Muslim by religion and of Kurdish ethnicity.
[3]
He arrived in Canada on August 29, 2011 on a
visitor’s visa and claimed refugee status on the basis of his Kurdish ethnicity
and, as a conscientious objector, of his objection to military service.
[4]
The hearing before the RPD was held on July 31,
2013. At the hearing the Applicant made the following allegations. In 2006, he
was asked to report for his military draft inspection. To avoid performing his
military service, the Applicant moved to the United Kingdom on a visitor’s visa
where he remained without legal status until October 2008. He was then deported
back to Turkey, and upon his arrival, was detained because he had not performed
his military service. Through bribing, the Applicant was released, but he
undertook to report to his local military office a week later. Instead of going
to the military office, the Applicant registered for university courses which
led the military to grant him a deferment of his military obligations until
January 1, 2013. He claimed to fear being arrested, tortured or killed in
detention if he were to move back to Turkey. He argued that he had a
well-founded fear of being persecuted there based on his political opinion as a
conscientious objector and because of his race and nationality as a Kurd, and
he further submitted that he would be subjected to harsh and cruel prison
conditions which would amount to cruel and usual treatment or punishment should
he be sent back to Turkey.
III. Decision
under review
[5]
The RPD was satisfied as to the Applicant’s
identity.
[6]
The RPD stated that there was no internationally
recognized right to being a conscientious objector and the fear of being
prosecuted for desertion is not sufficient to prove a well-founded fear of
persecution. It was deemed necessary to determine whether the Applicant was in
fact a conscientious objector as case law greatly restricted the scope of this
notion. In this regard, the Applicant submitted no evidence that he had strong
religious beliefs or that he was part of an organization of conscientious
objectors, he never disclosed his opinions on the matter to anyone, and instead
of telling the military that he was opposed to mandatory service, on one
occasion he fled the country and on another he registered in classes to obtain
a deferment.
[7]
For the RPD, being prosecuted for failing to
comply with mandatory military service is not generally considered persecution.
The Applicant had the burden of proving that his situation was truly a case of
persecution. According to the documentary evidence, failing to abide by the
Turkish law requiring compulsory military services can result in a sentence of
one month to 36 months of detention. Following the applicable jurisprudence,
even if the Applicant were to be imprisoned for 36 months, it would not
constitute persecution.
[8]
The Applicant also referred to specific cases in
the National Document Package that allegedly support his claim that, as a
conscientious objector, he would be subjected to harsh and cruel prison
conditions which would amount to cruel and usual treatment or punishment. The
RPD found that these cases were isolated situations. The Applicant simply had
not provided enough evidence to establish that he was indeed a conscientious
objector.
[9]
With respect to the claim that the Applicant
would be subjected to discrimination amounting to persecution because he is a
Kurd, the RPD noted that the Applicant failed to provide sufficient evidence to
establish persecution.
[10]
As such, the RPD found that, on a balance of
probabilities, that there was no reasonable chance or serious possibility that
the Applicant would be persecuted should he return to Turkey, and that it was more likely than not that the Applicant would not be subject
personally to a risk to his life or to a risk of cruel and unusual treatment or
punishment, or danger of torture.
IV. Applicant’s
submissions
[11]
The Applicant argues that it was unreasonable
for the Panel to find that the Applicant was not a conscientious objector
because he lacked genuine convictions and because he worked “within the system
in order to postpone the performance of his military service”. It is well
documented that the right to be a conscientious objector does not exist in Turkey, and the Applicant did the only legal thing he could do to defer his service: pursue
an education. The Applicant also argues it was also unreasonable for the RPD to
find that the Applicant should have disclosed to the military authorities or
publicized his beliefs given that doing so would inevitably have exposed him to
even worse treatment.
[12]
In addition, the Applicant submits the RPD erred
when it came to the conclusion that the cases of conscientious objectors
submitted by the Applicant were isolated cases as there is clear evidence that
conscientious objectors are frequently exposed to mistreatment while in
detention.
[13]
Also, the Applicant argues the RPD unreasonably
failed to consider documentary evidence in coming to the conclusion that he
would not suffer persecution by reason of his Kurdish ethnicity.
V. Respondent’s
submissions
[14]
The Respondent claims that the RPD’s decision is
reasonable and correctly reflects the evidence submitted. The finding that the
Applicant is not a conscientious objector is completely reasonable considering
the evidence adduced by the Applicant, who had the onus of proving the
genuineness of his convictions. What is more, it was also incumbent on the
Applicant to demonstrate that his refusal to perform his military service would
expose him to persecution, which he did not do.
[15]
The RPD also reasonably found that the possible
sentence for draft evasion -- ranging from one month to 36 months of imprisonment
― does not amount to persecution as this finding is consistent with
case law. Furthermore, the Applicant also had the onus but failed to establish
that his refusal to perform the mandatory military service exposes him to a
greater punishment as a result of his own personal attributes.
[16]
As for the Applicant’s Kurdish ethnicity,
nothing in his Personal Information Form [“PIF”] relates to this allegation. He
has failed to produce any evidence to the effect that he is exposed to a
personalized risk due to his ethnicity.
VI. Issues
[17]
This application for judicial review raises
three issues:
1.
Did the RPD err in finding that the Applicant
was not a conscientious objector?
2.
Did the RPD err in finding that the punishment
for evasion of mandatory military service that is provided for under Turkish
law does not amount to persecution?
3.
Did the RPD err in finding that the Applicant
failed to establish that he would be persecuted due to his Kurdish ethnicity?
VII. Standard
of review
[18]
The RPD’s findings regarding the Applicant’s
refugee protection claim are all to be reviewed under the standard of
reasonableness (see for example Sahin v Canada (Minister of Citizenship and
Immigration), 2013 FC 990 at para 8, [2013] FCJ No 1088; Etiz v Canada
(Minister of Citizenship and Immigration), 2013 FC 308 at paras 16-17,
[2013] FCJ No 333). By way of consequence, this Court shall intervene only if
the findings are unreasonable to the point that they fall outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] SCJ No 9).
VIII. Analysis
[19]
For the following reasons, this Court finds that
the RPD’s decision is reasonable.
A. Did
the RPD err in finding that the Applicant was not a conscientious objector?
[20]
It was reasonable for the RPD to conclude that
the Applicant was not a conscientious objector because he failed to demonstrate
the genuineness of his convictions. It is well established that a claimant
cannot be granted refugee status just because he or she does not want to serve
in his or her country’s army (Lebedev v Canada (Minister of Citizenship and
Immigration), 2007 FC 728 at para 14, [2007] FCJ No 975 [Lebedev]).
There are exceptions to this general rule, including that of “conscientious
objectors”, notion which this Court has restricted “to those cases where a
claimant refuses to take part in any military action because of his genuine
convictions grounded in religious beliefs, philosophical tenets or ethical
considerations.” (Lebedev, above, at para 46).
[21]
In the present case, the Applicant failed to
adduce evidence suggesting that he refuses to perform his mandatory military
service because of convictions that are grounded on his religious beliefs,
philosophical tenets or ethical considerations. The RPD examined the evidence
and reasonably concluded, for lack of evidence, that the Applicant was not a
“conscientious objector”. The RPD indicated that there was no evidence
demonstrating, inter alia, that the Applicant has strong religious
beliefs, that he was a member of an organization of conscientious objectors, or
that he had ever made public statements to the effect that he objected to
having to serve in the army. Independently of the Applicant’s arguments that
the RPD should not have expected him to have disclosed his beliefs to the
military authorities because doing so would have exposed him to greater danger,
it should be noted that, at the very least, there must be evidence on file that
the Applicant was indeed a conscientious objector, and there was not.
Considering the facts in the present case, the RPD’s finding in this regard
certainly fell within a range of possible, acceptable outcomes.
B. Did the RPD err
in finding that the punishment for evasion of mandatory military service that
is provided for under Turkish law did not amount to persecution?
[22]
The RPD did not commit an error in coming to
this conclusion as it is consistent with applicable case law. As aptly
summarized by the Respondent, there is no internationally recognized right to
conscientious objections (Hinzman v Canada (Minister of Citizenship and
Immigration), 2006 FC 420 at para 207, [2006] FCJ No 521 [Hinzman])
and being opposed to military service is not sufficient to establish a
well-founded fear of persecution (see Karen v Canada (Minister of
Citizenship and Immigration), 2011 FC 1217 at para 18, [2011] FCJ No 1486 [Karen];
Mohilov v Canada (Minister of Citizenship and Immigration), 2008 FC 1292
at para 33, [2008] FCJ No 1645).
[23]
The Federal Court of Appeal has previously held
that the prosecuting and imprisoning of people who refuse to perform military
service rendered mandatory under an ordinary law of general application does
not constitute persecution on the basis of a Convention ground (Ates v
Canada (Minister of Citizenship and Immigration), 2005 FCA 322, [2005] FCJ
No 1661). Therefore, it was incumbent upon the Applicant to demonstrate to the
RPD “that the sentence awaiting him would amount to persecution.” (Karen,
above, at para 19; see also Hinzman, above, at para 117).
[24]
After having considered the evidence, the RPD
came to the conclusion that even the maximum penalty of 36 months of
imprisonment that could be imposed upon the Applicant would not constitute
persecution. This finding is consistent with the jurisprudence surrounding the
matter (see for example, Sahin v Canada (Minister of Citizenship and
Immigration), 2013 FC 990 at para 18, [2013] FCJ No 1088; Ozunal v Canada (Minister of Citizenship and Immigration), 2006 FC 560 at para 28, [2006] FCJ No
709).
[25]
Furthermore, the Applicant also argues that
there is strong evidence supporting his submission that conscientious objectors
are frequently ill-treated during detention and that, therefore, it was
unreasonable for the RPD to find that he was not exposed to a risk to his life
or to a risk of cruel and unusual treatment or punishment. There may well be
evidence to that effect. However, the RPD had already reasonably concluded that
the Applicant was not a conscientious objector. Hence, the evidence referred to
by the Applicant on this issue was not relevant at the time of the hearing
before the RPD and so it remains today. The RPD’s finding in this regard is
reasonable.
C. Did the RPD err in
finding that the Applicant failed to establish that he would be
persecuted due to his
Kurdish ethnicity?
[26]
The Applicant submitted absolutely no evidence
to establish a personalized risk related to his ethnicity. In fact, on several
occasions during the hearing before the RPD, the presiding member made it quite
clear to counsel that the evidence submitted with respect to the difficulties
the Kurds experience in Turkey was of general application. Despite having the
onus to do so, the Applicant simply did not adduce sufficient evidence – or any
evidence at all, for that matter – in his PIF narrative or at the RPD hearing
that could establish the Applicant’s personalized risk in these circumstances (Jarada
v Canada (Minister of Citizenship and Immigration), 2005 CF 409 at paras
26-28, [2005] FCJ No 506).
[27]
As there was no evidence and considering that
merely being a Kurd is not sufficient to grant refugee status, it was
completely reasonable for the RPD to conclude that the Applicant failed to
demonstrate that he would be persecuted in Turkey due to his Kurdish ethnicity,
and the RPD more than sufficiently addressed the question in its reasons.
[28]
For all of the aforementioned reasons, this
Court finds that the RPD’s decision finding that the Applicant is neither a
“refugee” within the meaning of section 96 of the IRPA nor a “person in need of
protection” under section 97 of the IRPA is reasonable, and this application
for judicial review shall be dismissed.
[29]
The parties were invited to submit questions for
certification, but none were proposed.
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