Docket: IMM-2606-13
Citation:
2014 FC 760
Ottawa, Ontario, July 30, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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FATIH YASIK
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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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JUDGMENT AND REASONS
[1]
The Applicant seeks judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated March 11, 2013, in which it concluded that he was not a
Convention refugee nor a person in need of protection pursuant to sections 96
or 97, respectively, of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA).
Background
[2]
The Applicant is a citizen of Turkey, an ethnic Kurd and is of the Alevi faith. He claims that, beginning in 2009, he was
subjected to a number of detentions and arrests resulting from his political
activities. In November 2010, he was participating in a demonstration when he
was arrested, held for one day and tortured by the police before being released
without charge. In January 2011, he was arrested when distributing flyers on
the anniversary of the disappearance of two Kurdish politicians while in state
custody. At that time he was held and tortured for two days. He was again
released without charge but not before a high ranking police officer threatened
him with death if he was arrested again. Subsequently, the police harassed and
subjected him to random searches and beatings. In March 2011, he was picked
up, questioned and beaten by police. Unable to tolerate further such treatment,
in May 2011 he obtained a US visa. He flew to the US on June 12, 2001. There,
he retained a human smuggler who arranged his entry into Canada on August 3, 2011 where he made a claim for refugee protection.
Decision Under Review
[3]
The RPD found that the Applicant was not a
Convention refugee pursuant to section 96 of the IRPA because he did not have a
well-founded fear of persecution in Turkey on any of the five Convention
grounds. Nor was he a person in need of protection pursuant to section 97 as,
on the balance of probabilities, his removal to Turkey would not subject him
personally to a risk to life or a risk of cruel and unusual treatment or
punishment, or to a danger of torture.
[4]
The RPD stated that the determinative issue was
credibility and that it also considered the well-foundedness of the Applicant’s
alleged fear due to his Kurd and Alevi identity.
[5]
The RPD stated that there were several concerns
that, collectively, led to its finding that the Applicant was not credible. In
the result, it also found that the events of persecution alleged did not occur
and, therefore, that there was insufficient credible evidence to conclude that
there is a serious possibility that such events would occur in the future.
[6]
The RPD noted that the claim was undocumented
until the day of the hearing. At the hearing, the Applicant submitted a
package of documents which he testified had been sent to him from his cousin in
Turkey. His cousin had picked up all of the documents, except one, from a
lawyer that the Applicant had consulted but not retained. He could not provide
the envelope which the package of documents had arrived in or the envelopes in
which some of them may have been delivered within Turkey. The Applicant stated
that he had consulted a lawyer in Turkey to seek protection from his alleged
agents of persecution. When asked why he had not stated this in his Personal Information Form (PIF) narrative he explained that there were so many things that he mentioned
only some and not all of them. The RPD did not accept that explanation and
noted that he was represented by counsel when he completed the PIF. The RPD
found this to be an embellishment at the hearing and drew from it a negative
credibility inference. Consequently it found that the documents “are at the very least assigned a lesser weight by the Panel,
and in fact this provides some cause to find these documents to be not
genuine.”
[7]
The RPD questioned how legal and medical
documents would be sent by the authorities to the Applicant’s lawyer if he had
not met or retained him. The Applicant explained that he had previously
retained the lawyer on another matter, which the RPD found to contradict his
testimony that he had never met the lawyer. Additionally, the Applicant could
not document the existence of the lawyer or his relationship with him. From
this, the RPD made another negative inference as to credibility and found this
to be another reason to conclude that the documents alleged to originate from
the lawyer were not genuine.
[8]
As to a medical report contained in the package
of documents allegedly received from the lawyer and which concerned treatment
following his January 2011 detention, the RPD also noted that the Applicant’s
PIF did not refer to this treatment. The RPD questioned why it was dated
January 2011 when he testified that it was received by his lawyer four or five
months before the hearing, being late 2012. The RPD did not accept his
explanation that this was a file copy of the report. It also noted the absence
of a medical report from Canada that might have corroborated his allegations of
torture. The RPD found the claim of medical care to be an embellishment and
drew a negative inference as to credibility.
[9]
As to an investigation note dated April 14, 2011
which the RPD found to be more like a notice to appear, it was addressed to the
police from the prosecutor and required the Applicant, who was described as a
suspect, to appear in court four days later. When asked why he would be
described as a suspect as he had been detained and released, the Applicant stated
that it was to give evidence but he did not recall if he had been told this
upon his release. He was also asked why the document was sent to his house,
given that it was addressed to the police, but he had no explanation for this.
He also stated that it came to his house in May although it was dated April 14
and was a notice to appear four days later. Further, that he was away during
this time but he could not explain why his parents, who were at home, did not
tell him about the document until six months before the hearing. Based on
this, the RPD found the document was not genuine.
[10]
The RPD stated that its finding that all of the
documents submitted by the Applicant were not genuine was not the only reason
that it determined that the Applicant was not credible. It also noted an
inconsistency in his evidence concerning his opportunity to consult with
counsel during the March 2009 detention which was unsatisfactorily explained
and led to a negative inference as to credibility.
[11]
The RPD noted that, after his failed application
for a Canadian visa in 2008, the Applicant made no attempt to leave Turkey between 2008 and 2011 although he claimed he had problems before 2009 and that they
increased in severity. His explanation was that he felt he should wait a while
before seeking another visa and that he had heard that it was only Canada which accepted refugees. The RPD noted his testimony that he started to more
seriously fear Turkey in January 2011, but did not apply for a US visa until April 2011 and that he did not leave Turkey for a month after he received his visa.
The RPD did not accept his explanation that it took that length of time to
prepare his documents or to receive his visa and to borrow money. Nor did it
accept his explanations as to why he spent two months in the US without making a claim for asylum, being a lack of money and because he was advised that Turkish
asylum claims do not succeed in the US. The RPD also made a negative inference
as to credibility based on an inconsistency in his testimony as to whether or
not the person who gave this advice was a lawyer.
[12]
Given these delays and the failure to consider
an asylum claim in the US, the RPD found that the Applicant did not have a
subjective fear of remaining in or returning to Turkey and, because he alleged
to have had that fear, it made a negative credibility finding. Further, that
his testimony at the hearing that he was threatened with additional death
threats by the police, when he had mentioned only one such threat in his PIF,
was not satisfactorily explained and was found to be an embellishment from
which a negative inference was drawn.
[13]
As to the question of whether the Applicant
required protection from conscription in the Turkish military, at the hearing,
he claimed to be a conscientious objector. However, he did not state this in
his PIF and the RPD did not accept his explanation that he did not think of it
at the time. This was again found to be an embellishment from which a negative
inference as to credibility was drawn and from which the RPD also found that
the Applicant did not require Canada’s protection from conscription. And,
based on its other credibility findings, it did not accept any of the stated
reasons for not wanting to serve in the military and found that the Applicant
simply did not wish to do his Turkish compulsory military service.
[14]
As to the question of whether the Applicant
required protection because he is Alevi and Kurdish, the RPD reviewed the
country documentation and found that Kurds who aggressively advocate for
Kurdish rights might face persecution but, based on its credibility finding,
concluded that the Applicant did not have that profile. And, while the
documentation speaks of discrimination and some attacks on Alevi, there are
millions of Alevis in Turkey and only a small number of attacks. In both cases,
mere inclusion in either the ethnic or religious group did not lead to
persecution. Thus, there was only a mere possibility that the claimant would
be attacked and not a serious possibility of being persecuted.
Issues
[15]
I would frame the issues in this application as
follows:
1. Is the RPD’s credibility
finding reasonable?
2. Did the RPD
fail to address other grounds of persecution alleged by the Applicant?
Standard of Review
[16]
It is established jurisprudence that credibility
findings are essentially pure findings of fact that are reviewable on a
reasonableness standard (Zhou v Canada (Minister of Citizenship and
Immigration), 2013 FC 619 at para 26 [Zhou]; Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 (CA)).
Similarly, the weighing of evidence and the interpretation and assessment of
evidence is also reviewed on a reasonableness standard (Zhou, above, at
para 26).
[17]
Reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process,
but also with whether the decision falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
Analysis
ISSUE 1: Is the RPD’s credibility finding reasonable?
Applicant’s Position
[18]
The Applicant submits that the RPD’s credibility
findings are unreasonable because it adopted an overzealous and sometimes
careless approach to the evidence resulting in credibility findings that are
generally unsupported by the record. Based on these credibility findings, and
contrary to the jurisprudence (Yener v Canada (Minister of Citizenship and
Immigration), 2008 FC 372 at para 31), it unreasonably found that the
documents were not genuine.
[19]
The Applicant also submits that the RPD erred in
failing to assess the authenticity of the documents he submitted. Foreign
documents are presumed to be valid unless there is evidence to the contrary (Ramalingam
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 10 at
para 5 (TD) [Ramalingam]). Here, they contained seals, stamps and
signatures which have been recognized as security features going to authenticity
(Zheng v Canada (Minister of Citizenship and Immigration), 2008 FC 877
at paras 18-19 [Zheng]; Ru v Canada (Minister of Citizenship and
Immigration), 2011 FC 935 at paras 39-42, 48 [Ru]), however, the RPD
focused only on the manner in which the documents were obtained.
Respondent’s Position
[20]
The Respondent submits that the RPD found the
Applicant not to be credible for many reasons. The Applicant does not take
issue with any of these reasons, but argues that the RPD ought to have
considered the authenticity of his documents. There is only a presumption that
foreign documentation is valid and the RPD is entitled to assess the weight to
be afforded to the documents (Cheikhna v Canada (Minister of Citizenship and
Immigration), 2012 FC 1135). It also provided valid reasons for doubting
their authenticity (Benmaran v Canada (Minister of Citizenship and
Immigration), 2011 FC 755 [Benmaran]). Documents whose authenticity
has not been undermined may, in appropriate circumstances, be assigned little
or no weight, provided that the RPD explains why it did so (Grozdev v Canada
(Minister of Citizenship and Immigration), [1996] FCJ No 983 (TD); Memacaj
v Canada (Minister of Citizenship and Immigration), 2012 FC 762 at para
53). Further, it is within the RPD’s jurisdiction to decide questions of
credibility and afford weight to the evidence (Brar v Canada (Minister of
Employment and Immigration), [1986] FCJ No 346 (CA); Castro v Canada
(Minister of Employment and Immigration), [1993] FCJ No 787 (TD)).
Analysis
[21]
The RPD determined that there were multiple
reasons that, cumulatively, caused it to find that the Applicant was not
credible. The Applicant imputes many of those findings and refers the Court to
the evidence which he considers contradicts the decision.
[22]
Having reviewed each finding, the record and the
submissions of the parties, it is my view that while it may be possible to
disagree with some of the RPD’s findings and that there may be some errors of
analysis, viewed in whole, the decision falls within the range of possible
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[23]
With respect to the RPD’s findings of omissions
from the Applicant’s PIF concerning the consultation with a lawyer, medical
assistance in Turkey, other death threats, and, that the Applicant was a conscientious
observer, I would note that it is open to the RPD to base credibility findings
on omissions and inconsistencies between Port of Entry notes, PIFs and a
claimant’s testimony at the hearing (Sheikh v Canada (Minister of Employment
and Immigration), [1990] 3 FC 238 (CA); Kaleja v Canada (Minister of
Citizenship and Immigration), 2011 FC 668 at para 18; Shatirishvili v
Canada (Minister of Citizenship and Immigration), 2014 FC 407 at para 29 [Shatirishvili]).
[24]
The Applicant testified that he had a lawyer in Turkey with whom he discussed his problems. When asked if he actually discussed his
problems and obtained an opinion, the Applicant stated that he did not because he
did not have enough time. When asked if he was a client of the lawyer, he
replied that he had not retained him officially but that they had been in touch
continuously because the Applicant was asking him questions and he was
answering. He also stated that he had spoken to the lawyer in Turkey over
telephone in an to attempt to obtain protection from the authorities in
relation to his experiences in 2011, but that he did not meet him personally. When
asked why he did not mention that he spoke to a lawyer regarding seeking
protection in his PIF, he replied that there were many things, and therefore he
did not mention everything briefly. The RPD noted that the Applicant was
represented by counsel when he prepared his PIF.
[25]
In my view, while alone this was not a
particularly significant omission, the RPD was not obliged to accept the
Applicant’s explanation and it was open to it to find this to be an
embellishment and to draw a negative inference to credibility, particularly in
light of the RPD’s other credibility concerns (Sandhu v Canada (Minister of
Citizenship and Immigration), 2005 FC 370 at para 5).
[26]
Similarly, the RPD found that the Applicant had
omitted to include in his PIF that he received medical assistance in Turkey as a result of the alleged assault while in custody in January 2011. His
explanation for this was, again, that he did not mention everything in his PIF.
The RPD was not obliged to accept this explanation (Gulabzada v Canada
(Minister of Citizenship and Immigration), 2014 FC 547 at para 9;
Houshan v Canada (Minister of Citizenship and Immigration), 2010 FC 650 at
para 19) and, in my view, it was a significant omission as a hospital
attendance would serve to confirm both the existence and severity of the
assault. The RPD also noted that he did not produce the medical report until
the day of the hearing.
[27]
The Applicant also testified at the hearing that
he did not complain about the illegal police brutality to the prosecutor
because in all four instances the police had threatened him with death. The RPD
noted that in his PIF, the Applicant had only mentioned that he was threatened
in this manner in connection with the January 2011 incident. It did not find
his explanation that he had been particularly brutally beaten in January 2011
to satisfactorily explain the omission. Again, this was a reasonable finding.
[28]
The fourth omission concerned the Applicant’s
testimony at the hearing that he was a conscientious objector. The RPD found
that this was not included in the Applicant’s PIF in which he stated the
following:
I strongly object serving in the Turkish army
for many reasons. The Turkish army has been involved in the grave human rights
violations against the Kurdish civilians in east and southeast of Turkey for many years. I will be persecuted in the army because of my profile.
[29]
A conscientious objector is defined as an
individual having principled objections to military service, which is detailed
under the third exception to the general rule that an applicant generally cannot
claim refugee status under the United Nations Convention Relating to the
Status of Refugees (the Convention), and accordingly under section 96 of
the IRPA, just because he does not want to serve in his country's army (James
Hathaway, The Law of Refugee Status (Markham: Butterworths, 1991)
[Hathaway]).
[30]
Persons claiming refugee status based on their
conscientious objection to military service essentially form two specific
groups: those who object to military service in general and those who object to
serving in a particular conflict (Lebedev v Canada (Minister of Citizenship
and Immigration), 2007 FC 728 [Lebedev]; Hinzman v Canada
(Minister of Citizenship and Immigration), 2006 FC 420, aff’d 2007 FCA 171
[Hinzman]).
[31]
The Applicant stated in his PIF that his
objection was based on human rights violations against Kurdish civilians. Before
the RPD, he stated that he was against killing and serving in any military
service and for the reasons included in his PIF. While the definition of, and
distinctions within, the term conscientious objector may not be understood or
appreciated by all refugee claimants, in this case the Applicant was
represented by counsel when he prepared his PIF and counsel would have
appreciated the significance and importance of this term and the necessity of
including it in the PIF. In my view, while alone this omission would not be
fatal, what is being considered here is a cumulative negative credibility
finding and this omission would contribute to that finding.
[32]
The next credibility findings to be considered
involve the authenticity of the documents submitted by the Applicant and the
existence of his lawyer in Turkey.
[33]
The RPD noted that the Applicant had not
documented his claim in any way until the day of the hearing, even though it
had been previously scheduled. There were then four documents provided: the
January 11, 2011 medical report; an in absentia arrest warrant dated January
18, 2013; a record of suspect’s statement dated January 8, 2011; and, an
investigation note or notice to appear from the chief prosecutor’s office dated
April 14, 2011. The Applicant testified that his cousin had picked up three of
these from the Applicant’s lawyer in Turkey and mailed them to him together
with the notice to appear. He did not have any envelopes in which they were
sent or received. His testimony as to the Turkish lawyer is described above.
[34]
There is a presumption of validity in regard to
foreign issued documents and the RPD is only entitled to doubt their validity
if it has a valid reason to do (Ramalingam, above; Cao v Canada (Minister of Citizenship and Immigration), 2012 FC 694 at para 15; Ru,
above, para 42). It is also well established that the assessment of the weight
to be given to documents is a matter within the discretion of the tribunal
assessing the evidence (Ru, above, at para 49).
[35]
There is a concern in this matter arising from
the fact that the RPD does not address in its decision the fact that documents
submitted by the Applicant contain stamps and signatures from authorities but
that the RPD did not analyze these features. Jurisprudence has held that
official stamps are recognized as security features (Ru, above, at para
49; Zheng, above, at paras 18-19).
[36]
Given this, it is necessary to consider each of
the documents and the RPD’s findings so as to ascertain if this failure amounts
to a reviewable error in these circumstances.
[37]
In my view, the RPD may have been overzealous in
questioning the authenticity of the medical report because it was dated January
11, 2011. The Applicant explained that he had asked his cousin to obtain the
report which he did four or five months before the hearing. The RPD asked why
it was dated January 2011 if it was issued four or five months ago. On its
face, the document does not have an issuance date. It is possible, as the
Applicant explained, that it was a file copy and that the report was made on
the date the Applicant was seen at the hospital. However, the RPD also found
that the report was not genuine because of other credibility concerns, in
particular, that the Applicant omitted to indicate in his PIF that he received
medical attention after the alleged assault in custody of January 2011. Thus,
the RPD had a valid reason to doubt the veracity of the document.
[38]
In my view, the RPD also reasonably questioned
the investigation note which it found was more like a notice to appear. It is
dated April 14, 2011, is addressed to the police from the prosecutor, and
required the Applicant to appear in court as a suspect four days later, being
on April 18, 2011. The RPD found that it was fraudulent because it identified
the Applicant as a suspect but he stated that he had been detained and then
released by the authorities. The RPD also noted that the Applicant stated that
he believed it was sent to his house in May, yet it was addressed to the
police, and required him to attend court in April. In my view, the RPD was not
inconsistent in finding that the investigation note was more like a notice to
appear, because that is precisely what it appears to be. The RPD’s questioning
of why a notice for the Applicant to appear would be directed to the police was
a reasonable concern as was why his parents, who he stated received the
investigation note at their home, had not alerted him to it until six months
ago.
[39]
The RPD does not discuss the in absentia arrest
warrant or the record of suspect’s statement. However, it made a general
finding that all of the documents sent by the lawyer were not genuine because
it did not believe that the lawyer existed and because there was no envelope to
prove that the documents were sent from Turkey. It was therefore reasonable
for the RPD to question their authenticity. In any event, the omission to
refer to these two documents is not determinative as the conclusion would have
been the same (Benmaran, above, at para 11).
[40]
As noted above, the Applicant did not mention
his Turkish lawyer in his PIF and raised it for the first time at the hearing.
A reading of the transcript of the hearing adds little clarity to the Applicant’s
relationship with the lawyer. The RPD acknowledged that it did not ask the
Applicant to provide the name or location of the lawyer. Therefore, the
Applicant is correct in stating that the RPD did not put this to the Applicant
nor was he offered an opportunity at the hearing to provide documentation
detailing the existence of the lawyer. However, the Applicant stated that he
did not have a letter from the lawyer confirming his assistance. And, neither
the Applicant, nor his counsel, stated at the hearing that they had documents
to prove that the lawyer existed or that such verification could be obtained.
[41]
Given these circumstances, and in light of the RPD’s
other credibility findings, in my view, it was reasonable for the RPD to
question whether the lawyer existed and to find that he did not. Even if the
lawyer did exist, the RPD’s cumulative negative credibility findings, including
its findings concerning the medical report and investigation note, would alone
have been sufficient to ground its conclusion.
[42]
The RPD also reasonably drew an adverse
inference because the Applicant first indicated that he was provided with an
opportunity to consult with counsel during his alleged detention of March 2009
and then testified that he did not think that he was offered the right. It did
not accept his explanation that the event occurred several years ago.
[43]
That said, the RPD did make errors in its
analysis. For example, it drew an adverse inference as to credibility in
finding that the Applicant’s testimony was inconsistent as to whether he spoke
with a lawyer in the US. However, a review of the transcript indicates that the
RPD drew an inconsistency where there was none. The Applicant stated that he
did not speak with a lawyer in the US. The RPD also drew a negative inference
as to the Applicant’s credibility because he alleged, but the RPD found that he
did not have, a subjective fear of remaining in or returning to Turkey. In my view, this is a peculiar and very dubious finding.
[44]
Notwithstanding these errors, the credibility
determination, which was cumulative, remains supported by a number of
reasonable findings (Gomez Herrera v Canada (Minister of Citizenship and
Immigration), 2012 FC 1386 at para 7; Shatirishvili, above, at para
35).
ISSUE 2: Did the RPD fail to
address other grounds of persecution alleged by the Applicant?
Applicant’s Submissions
[45]
The Applicant submits that contrary to the RPD’s
finding, he raised three grounds of persecution in his PIF, as described in Lebedev,
above, at paras 29-33, which might arise from objection to military
service (see also Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees, para 168; Zolfagharkhani v Canada (Minister of Employment
and Immigration), [1993] 3 FC 540; Hinzman, above). These
exceptions include:
(1) the
claimant would suffer some a form of discriminatory treatment before during or
even after compulsory military service based on race, religion, nationality, membership,
or political opinion;
(2) the claimant is a
conscientious objector;
(3) the
claimant objects to serving in a war that is internationally condemned and
contrary to principles of international and humanitarian law.
[46]
The Applicant submits that the RPD erred in
failing to address the other grounds of his persecution, being the first and
third exceptions above, and that this warrants overturning the decision (Ghirmatsion
v Canada (Minister of Citizenship and Immigration), 2011 FC 519 at para 106
[Ghirmatsion]). Instead, it restricted its examination to whether he
was a conscientious objector. The additional grounds are central to his claim
and are not merely “an afterthought not supported by
evidence” (Suppaiah v Canada (Minister of Citizenship and Immigration),
2013 FC 429). He stated that he fears being persecuted in the army because of
his profile and he listed his objections to serving in the Turkish army. He
also testified that he is a conscientious objector. The documentary evidence
corroborates his objections and required the RPD to take them seriously.
Respondent’s Submissions
[47]
The Respondent submits that the RPD did consider
the Applicant’s assertion of being a conscientious objector. Further, that the
Applicant’s evidence during the hearing when asked why he did not state that he
was against killing for conscientious reasons was that he did not think of it
at the time. Moreover, he was not found to be of a profile that would place
him at a risk of persecution and there is no indication that the additional
ground was central to his claim. The RPD considered whether he would be
persecuted as a result of his ethnicity and religion, but reasonably found that
he did not have the profile and therefore there was no serious possibility that
he would be persecuted. The onus was on the Applicant to raise arguments
concerning participation in a war that is internationally condemned. The RPD
reasonably did not accept that he was a genuine conscientious objector.
Analysis
[48]
It is of note that in his application for leave
and judicial review, the Applicant raised only one issue, being whether the RPD
erred in analyzing his documents and, therefore, reached unreasonable
credibility findings. The Applicant did not mention the issue of his objections
to service in the Turkish military. Given this, it is difficult to accept, as
the Applicant submits, that from the outset this ground of persecution has been
a central and consistent part of his claim.
[49]
In his PIF the Applicant states:
I also fear that I will be forced to perform
the mandatory military service. I strongly object serving in the Turkish army
for many reasons. The Turkish army has been involved in the grave human rights
violations against the Kurdish civilians in east and southeast of Turkey for many years. I will be persecuted in the army because of my profile.
[50]
In my view, the RPD appears to have considered
and reasonably rejected the Applicant’s alleged grounds of persecution. The
RPD noted the Applicant’s claim that he feared conscription. It found that it
was possible that he would be conscripted, but that he had not produced any
call notices. He explained that this was because he was exempted from
conscription as he was in university. The RPD found that it was also possible
that he completed his military service.
[51]
The RPD also noted his allegation at the hearing
that he is a conscientious objector but reasonably rejected this submission.
While in his PIF he stated that he did not wish to serve in the Turkish
military because it is involved in human rights violations against his own
people, the Kurds, and because he would be maltreated in the military, he did
not claim that he was a conscientious objector. The RPD did not accept his
explanation that he did not think of it at the time finding that this would be
a very significant reason why a person would not want to serve. The RPD found
this to be an embellishment at the hearing and drew an adverse inference as to
credibility. Significantly, considering its other credibility concerns, the RPD
stated that it also did not accept any of the Applicant’s stated reasons for
not wanting to serve and found that he simply did not wish to do so.
[52]
In Lebedev, above, Justice de Montigny
confirmed that a claimant generally cannot claim refugee status under the
Refugee Convention and, therefore, section 96 of the IRPA, solely because he
does not want to serve in his country’s army. However, that there are three
exceptions to this being:
i) when
conscription for a legitimate and lawful purpose is conducted in a
discriminatory way or the punishment for desertion is biased in relation to a
Convention ground;
ii) when
there is an implied political opinion that the military service is
fundamentally illegitimate under international law;
iii) when
individuals have “principled objections” to
military service (i.e. conscientious objectors)
[53]
Conscientious objection applies to those who are
completely opposed to war because of their politics, ethics or religion and
raises subjective issues. Selective objection refers to cases which an
applicant opposes a war he feels violates international standards of law and
human rights and requires both a subjective and objective assessment of the
facts. Thus, a decision-maker must evaluate the sincerity of an applicant’s
beliefs and determine whether the conflict objectively violates international
standards. The two types of objections should be treated as distinct
categories.
[54]
The Applicant refers to Ghirmatsion,
above, in support of his view that the RPD erred in failing to address
two grounds of persecution that he claimed. In that case a visa officer did
not address the applicant’s fear of persecution on the basis of having left the
country illegally. Justice Snider stated that:
[103] The Respondent argues that the Officer
testified that she did not find the Applicant to be credible; therefore, she
was under no obligation to consider all of the relevant bases for persecution.
This would be a sound response if (a) the credibility findings are reasonable;
and (b) if the credibility findings clearly foreclosed all other grounds of
persecution.
[104] I acknowledge that, in general, a
negative credibility finding (if reasonable and made with regard to the
evidence) will mean that the decision maker does not have to look further into
the claim. For example, if a visa officer concludes that a claimant was never
imprisoned, it follows that a claim based on a fear of being returned to
detention is not sustainable. However, if the claimant puts forward facts that
raise an additional ground of persecution, that part of the claim still needs
to be assessed, unless the visa officer clearly finds that part of the claim to
also lack credibility.
[…]
[106] It would have been open to the Officer
to consider this additional ground of persecution and reject it; however, this
is not what the Officer did. She had no explanation for why she did not assess
this risk. The Respondent asks this Court to accept that the Officer was under
no obligation to consider these additional risks because she did not find the
Applicant’s story to be credible. However, that was not the reason why the
Officer did not consider these additional grounds of persecution. She had no
explanation. This is a reviewable error that, on its own, would warrant
overturning the Officer’s decision.
[55]
In the present case, unlike Ghirmatsion,
above, the RPD clearly addressed the Applicant’s claim to be a conscientious
observer and then went on to explicitly reject the other bases of his reasons
for not wishing to serve in the Turkish military because of its credibility
findings. It should also be noted that general findings of a lack of
credibility can affect all relevant evidence submitted by an applicant and
ultimately cause the rejection of a claim (Nijjer v Canada (Minister of
Citizenship and Immigration), 2009 FC 1259; Alonso v Canada (Minister of
Citizenship and Immigration), 2008 FC 683).
[56]
In any event, the Applicant’s claim as advanced could
not succeed on this ground (Etiz v Canada (Minister of Citizenship and
Immigration), 2013 FC 308, at para 11; Arpa v Canada (Minister of
Citizenship and Immigration), 2014 FC 334, at paras 20, 22). In my view,
neither the Applicant’s evidence, or the limited documentary evidence he
submitted in support of his position, would have been sufficient to establish
the depths or sincerity of his belief so as to establish that he was a
conscientious observer, or, that he would be required to participate in
military activities considered to violate existing international standards.
Nor did it establish that if conscripted he would be persecuted because of his
profile. That is, he did not establish that he fell within the established
exceptions to the general rule that a claimant cannot claim refugee status
because he does not wish to serve in his country’s army.
[57]
For the reasons set out above, this application
for judicial review is dismissed.
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