Docket: IMM-819-14
Citation:
2015 FC 330
Ottawa, Ontario, March 16, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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NESIM DURMUS
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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, Nesim Durmus, a citizen of Turkey
seeks judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Board), dated January 14, 2014,
which found that he was neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). The applicant’s claim was based on
his fear of persecution, torture, risk to his life, and the consequences of
objecting to military conscription in Turkey, due to his Kurdish ethnicity, his
political opinion and his membership in a particular social group, namely his
family and “young Kurdish men from the southeast”.
The Board made several negative credibility findings and concluded that there
was no reasonable chance or serious possibility that he would be persecuted on
a convention ground nor would he face a risk to his life or of cruel and
unusual punishment if he were returned to Turkey.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The applicant recounts that as a child, his
village was frequently targeted by the Turkish security forces in their efforts
to combat the influence of the Kurdistan Workers’ Party (the PKK) and as a
result, his father moved the family to the town of Korfez. However, while in
Korfez the family was frequently stopped at security checkpoints, and on
several occasions family members were beaten and harassed by Turkish
nationalists.
[4]
The applicant claims that many from his large
family were supporters and members of various pro-Kurdish parties. The
applicant’s brothers Mehmet, Ahmet and Naci were members of the Democratic
Social Party (DTP) party and its successor the Peace and Democracy Party (BDP).
The applicant visited the party office, participated in meetings, assisted
during elections, and celebrated Newroz (Kurdish New Year). The applicant and
his brothers were known to the police. Their family home was on occasion raided
by police. Two of his brothers, Ahmet and Ismail, fled to Canada and were accepted as convention refugees in 2003 and 2007, respectively, and his brother
Mehmet was accepted as a Convention refugee in the United States in 2004.
[5]
The precipitating incident that led the
applicant to flee Turkey was his arrest at the Newroz celebrations in March
2011. However, the applicant also recounted his participation in earlier Newroz
celebrations in March 2006, organized by the DTP. The applicant claims that he
shouted slogans along with his friends and as a result, was attacked and beaten
by the police and detained for two days. Upon his return to school, the school
principal reprimanded him and hit him and his teachers harassed him.
[6]
In December 2009, the applicant protested the
closure of the DTP in the city of Izmit. The police arrested protesters who
would not disperse. The applicant was arrested, detained for one day and
beaten.
[7]
The applicant states that he attempted to leave Turkey in 2010 and again in 2011. In 2010, he was refused student visas for the United States and Canada. In 2011, with the help of an agent, he fled Turkey for Venezuela, but was intercepted by Venezuelan authorities upon arrival at the airport and was
deported back to Turkey.
[8]
In March 2011, the applicant participated in a
Newroz celebration in Dilovasi. The applicant recounts that during the
celebration the police attacked the crowd and arrested people at random. While
attempting to flee, he fell and the police beat him and detained him for two
days. While detained, the police warned him to leave Turkey or he would be
killed just as many other Kurds had been killed.
[9]
The applicant then made plans to leave Turkey and obtained a second passport.
[10]
The applicant states that he left Turkey on March 29, 2011 with the help of an agent and travelled to Spain, then Cuba, the Bahamas, and the United States. On June 16, 2011 the applicant travelled to Detroit then crossed into Canada and on June 19, 2011 made his refugee claim in Canada where two of his brothers live.
[11]
The applicant also claims that he objects to
compulsory military service in Turkey due to human rights violations against
the Kurdish people. He claims that if he refuses to serve, he will be tried in
a military court, sentenced to imprisonment and upon release, he will be forced
to serve in the military. The applicant also states that his compulsory
military service had been deferred for either two or four years because he was
a student and had registered for university, although he did not attend.
The Decision Under Review
[12]
The Board’s decision is thorough and addresses
each aspect of the applicant’s claim. Due to the applicant’s arguments
regarding many of the Board’s findings, the decision is described in some
detail below.
[13]
The determinative issue for the Board was the
applicant’s credibility. The Board found that the applicant had not established
with credible evidence that he has the political profile he claimed; that he
was detained and beaten by Turkish authorities in March 2011; or, that the
Turkish authorities have any interest in him due to his political activities.
[14]
The Board accepted that the applicant may have
participated in Newroz celebrations and been detained in March 2006, and that
he may have protested in front of the court house on December 11, 2009.
However, the Board concluded that there was no credible or reliable evidence to
establish the applicant was even in Turkey at the time of the time of the March
2011 Newroz celebrations. The Board found the applicant embellished this
precipitating incident to bolster his claim for protection.
[15]
The Board’s doubt regarding whether the
applicant was in Turkey in March 2011 was based on the evidence regarding his
two passports, the absence of exit and entry stamps, his travel to Venezuela in
January 2011, and on the lack of evidence that he was arrested in March 2011 or
harmed and that he was released without any charges, which would have placed
him at that event.
[16]
With respect to the applicant’s account of the
March 2011 Newroz celebrations, the Board noted that he was dancing and enjoying
the celebration when the police arrived. The Board found that, as indicated by
the applicant, police arrested participants at random, and that the Turkish
authorities did not have any personal interest in the applicant due to his
political activities.
[17]
The Board also found that the applicant did not
have the political profile he alleges because, unlike his brother Naci Durmus,
he was not charged and tried for his political activities. The Board noted that
Naci Durmus was tried and acquitted as support for its view that there is due
process in Turkey for those charged with supporting an illegal organization.
[18]
With respect to the applicant’s alleged
departure from Turkey in March 2011, the Board doubted that he would have been
able to pass through airport security using his own identity documents if he
had been of any interest to state authorities. Although the applicant indicated
that he was assisted by an agent and that he did have to present his passport,
the Board noted that if he was wanted or was a person of interest, the security
system at the airport would have detected his departure. The Board concluded
that based on the evidence before it, the applicant had no difficulties with
Turkish authorities at either time he left Turkey, which was not consistent
with having the political profile as claimed.
[19]
The Board accepted a certified copy of the
applicant’s first passport issued in June 2010 as proof that he was in Turkey in 2010. The Board rejected the applicant’s claimed departure to Venezuela and his deportation back to Turkey since there were no exit or re-entry stamps on the
certified copy of his 2010 passport. The Board also noted that a document
submitted by the applicant to support his alleged departure to Venezuela was not an airline ticket, but rather a receipt for the purchase of a ticket,
with no demonstration of the use of the ticket.
[20]
The Board concluded that there was no credible
or trustworthy objective evidence to show that Turkish authorities had any
interest in the applicant at his departure or at any point after his passport
was issued in 2010 or in January or March 2011.
[21]
The Board did not accept the applicant’s
explanation that the agent had obtained a second passport for him because the
country documentation indicated that a passport must be applied for in person.
The Board acknowledged the applicant’s statement that the agent took this
passport along with other identity documents, including his Turkish
Identification Card during his travel to Canada. However, the Board also noted
that it had obtained a copy of the Turkish Identification Card from Citizenship
and Immigration Canada (CIC). Although the Board did not raise this
inconsistency with the applicant, and did not draw any negative credibility
inferences from this, the Board again found that it was not credible that the
applicant would have been able to leave Turkey, without incident, regardless of
the identification used, if he was wanted due to his political activities.
[22]
The Board examined the applicant’s claim that he
would be detained upon return to Turkey because he objects to serving in the
military and that his exemption would soon expire. The Board noted that he had
not indicated that he was a conscientious objector in his Point of Entry (POE)
notes and, as a result, drew a negative inference of credibility. The Board
noted that this initial interview is brief, but given the specific question, “Why are you asking for Canada’s protection?” it was not
reasonable for the applicant to have omitted this with respect to his fear of
returning to Turkey.
[23]
The Board noted the applicant’s confusing
testimony regarding obtaining an exemption while in high school, although he
was 19 years old at the time rather than 21, which is the age at which military
service is required and that he did not attend university and was employed at
the time his military service would otherwise had started.
[24]
The Board rejected a letter from a military
draft office obtained by the applicant’s brother, indicating that the
applicant’s military service was deferred until February 21, 2014. The Board
did not find it credible that the applicant’s brother would be able to obtain
such a document without presenting some proof that the applicant was exempt.
The Board again noted that the applicant had been a high school student in 2010
and did not attend university, questioning why a deferral until 2014 would be
provided.
[25]
The Board went on to address the applicant’s
fear of mistreatment for evasion of military service and considered the
consequences. The Board acknowledged that harassment and discrimination of
Kurdish people exist, but it does not meet the threshold of persecution. The
Board referred to the Country Condition documents and also noted that there was
no alternative to military service and draft evaders cannot leave Turkey. The Board stated that it had not been provided with sufficient evidence indicating
that the prosecution of the applicant for failing to comply with his military
service would amount to persecution.
[26]
The Board considered the country condition
documentary evidence regarding the treatment of Kurds in Turkey, noting that there had been improvements with respect to the recognition of Kurdish
rights. The Board noted that, although there were incidents of harassment and
discrimination of Kurds within the military, this did not arise to the level of
persecution. The Board also concluded that the applicant would be able to defer
his military service, acknowledged to be until the age of 29, according to the
National Documentation Package. The Board found there was no sufficient
evidence to demonstrate that the applicant would be prosecuted for failing to
comply with his military service order.
[27]
The Board considered but attributed little
weight to other letters provided by the applicant, including an undated, hand
written letter on plain paper from the Chairman of the BDP in the town of Korfez which indicated the applicant had been arrested 2 or 3 times, pepper sprayed and
beaten due to his political activities. Similarly, a letter from the
applicant’s half‑brother, stating that the police had detained him and
questioned him about the applicant a year and a half after the applicant left
for Canada was given low weight because there was no mention of why this
brother was detained. The Board also questioned why this would occur so long
after the applicant had left Turkey given that the authorities should have
known he had left the country since he was cleared through airport security.
The Board also noted that it was strange that the police had not questioned the
brother about other family members who remained in Turkey and were allegedly
politically active.
[28]
The Board went on to consider the applicant’s
alleged travel route to Canada noting that his Personal Information Form (PIF)
indicated he arrived in Cuba on March 30, 2011 by way of Madrid, Spain. He remained in Havana, Cuba, for 1 ½ months, then travelled to Nassau, Bahamas, where he
remained from May 15, 2011 until he left for West Palm Beach, Florida on June
13, 2011, where he stayed for three days before travelling to Detroit. (I note
that there is some inconsistency in the evidence regarding the time spent in
Cuba and Nassau, but overall the applicant remained in those two countries from
March 30 to June 13.) The Board found it unreasonable that if the applicant was
in fear, he did not seek protection at the earliest opportunity after he
departed Turkey. The Board focussed in particular on the applicant’s failure to
seek refugee protection in the United States, where he has a brother.
[29]
The Board also added that it had no credible or
trustworthy evidence that the applicant arrived in the US when he said he did,
and noted that the several negative credibility inferences and the absence of
corroborative evidence to show when he arrived in the US or in Canada, “does not provide the panel with any comfort in believing
anything the claimant has stated”. The Board added that he could have
arrived in 2010 or could have remained in the US longer than stated on his PIF.
[30]
To summarize, the Board found that the applicant
had not established his political profile or even a perceived political profile
and that he was not a person of interest to the Turkish police or other
authorities. The Board did not believe the events recounted by the applicant
and did not find that the applicant had provided credible evidence that he was
even in Turkey in March 2011.
[31]
The Board accepted that he was Kurdish and would
be subject to military conscription.
[32]
The Board also accepted that there is
discrimination against Kurds but found that there is no evidence that the
Kurdish people are persecuted as a group.
[33]
The Board noted that the applicant had the
responsibility to prove he has an objectively identifiable risk in Turkey in accordance with the convention definition and concluded he had not met this
burden.
The Issues
[34]
The applicant has raised several issues
regarding the reasonableness of the decision and whether it was procedurally
fair. I would frame the issues as follows:
1.
Whether the Board breached a duty of procedural
fairness due to the quality of the translation provided to the applicant at his
hearing; and,
2.
Whether the Board’s decision was reasonable, and
this includes:
a)
Whether the Board’s finding that the applicant’s
failure to seek refugee protection in Cuba, the Bahamas, or the United States
detracted from his subjective fear was reasonable, and,
b)
Whether the Board’s credibility findings were
reasonable.
Standard of Review
[35]
Questions regarding a breach of procedural
fairness and natural justice arising from the accuracy and consistency of the
translation are reviewed on the standard of correctness: Umubyeyi v Canada
(Minister of Citizenship and Immigration), 2011 FC 69; Singh v Canada (Minister
of Citizenship and Immigration), 2010 FC 1161.
[36]
Questions of credibility are questions of fact,
reviewable on a standard of reasonableness.
[37]
Where the standard of reasonableness applies,
the role of the Court is to determine whether the Board’s decision “falls within ‘a range of possible, acceptable outcomes which
are defensible in respect of the facts and law’ (Dunsmuir, at para. 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome”: Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para
59.
[38]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708,
[Newfoundland Nurses] at paras 14-16, the Supreme Court of Canada
elaborated on the requirements of Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir],
noting that reasons are to “be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” and that courts may “look
to the record for the purpose of assessing the reasonableness of the outcome”.
[39]
With respect to the Board’s assessment of
credibility, it is well-established that boards and tribunals are ideally
placed: Aguebor v Canada (Minister of Employment and Immigration), 160
NR 315, [1993] FCJ No 732 at para 4 (FCA). Further, given its role as trier of
fact, the Board’s credibility findings should be given significant deference: Lin
v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para
13, [2008] FCJ No 1329; Fatih v Canada (Minister of Citizenship and
Immigration), 2012 FC 857 at para 65, 415 FTR 82.
[40]
As noted by Justice Luc Martineau in Lubana v
Canada (Minister of Citizenship and Immigration), 2003 FCT 116, 228 FTR
43 at para 7, “the determination of an applicant's
credibility is the heartland of the Board's jurisdiction”.
[41]
Justice Mary Gleason made a similar observation
in Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319
at para 42, noting that “the starting point in reviewing
a credibility finding is the recognition that the role of this Court is a very
limited one because the tribunal had the advantage of hearing the witnesses
testify, observed their demeanor and is alive to all the factual nuances and
contradictions in the evidence.”
There was no breach of procedural fairness due to the
quality of the translation
[42]
The applicant submits that there were serious
errors in the interpretation from English to Kurdish and Kurdish to English, at
the hearing, which were not apparent until the transcript was reviewed. He
argues that the Board’s findings that he was evasive, and that some of the
other credibility findings can be attributed to the poor quality of the
translation.
[43]
I find that the applicant has not established
any breach of procedural fairness arising from the translation.
[44]
As noted by Justice Judith Snider in Francis
v Canada (Minister of Citizenship and Immigration), 2012 FC 636 at para 6:
Translation cannot be expected to be perfect.
Simply asserting that the translation was inadequate may not be sufficient
grounds on which to overturn a decision. An applicant must raise the issue at
the earliest opportunity or risk a conclusion that the right to procedural
fairness was not breached. Moreover, it is not enough to show that there were
errors: there will always be errors. A translation mistake will translate
into a procedural fairness error where an incorrect translation results in a
decision or determinative finding that might have been different had the words
been correctly translated. (My emphasis)
[45]
The applicant has not established that any
alleged errors in translation were a departure from the expected standard nor
has he established that the alleged errors were material to the Board’s
findings or would have resulted in a different determinative finding.
[46]
Although the Board found the applicant to be
evasive in response to questions about the identity documents he presented when
he departed from Turkey, and it is acknowledged that the translation of
specific questions and their clarification could result in some hesitation in
the answers given, the Board is well accustomed to awaiting translation and
clarification of questions and takes these circumstances into account. The
Board also found the applicant to be evasive more generally, including his
testimony about his military exemption. Moreover, the Board made many
credibility findings. The impact of the need to clarify the question regarding
his departure from Turkey, given many adverse credibility findings, would not
have changed the overall conclusion.
[47]
More importantly, the affidavit presented by Mr.
Huseyin Sertkaya stating that he “detected many errors in
the interpretation from both English to Kurmanji and from Kurmanji to English”
and that the interpreter would “often inappropriately
rephrase the questions asked by the Board Member and, at other times, would
completely misinterpret the Board Member’s statements” is not borne out
by the examples provided by the affiant. The examples point out very small
differences that would not, in my view, affect the applicant’s understanding of
the question or the Board’s understanding of his answer. I presume that Mr.
Sertkaya included the most problematic examples, which as noted are not
problematic and do not demonstrate “inappropriate
rephrasing”. Therefore, I cannot agree that there was any problem with
the translation that would have affected the Board’s credibility findings.
The Board did not err in finding that the applicant’s
failure to seek refugee protection in Cuba, Bahamas and the United States was inconsistent with his allegation of a well-founded fear of persecution
[48]
The applicant allegedly spent almost two months
in Cuba and the Bahamas before travelling to the United States. It was not
unreasonable for the Board to find that this conduct undermined his alleged
fear of persecution.
[49]
However, the Board did not dwell on this delay;
rather it noted the applicant’s credibility was impugned due to his failure to
claim protection in the United States, where he also had one brother. The Board
did not ignore that the applicant had two brothers in Canada, but this did not explain why the applicant did not pursue a claim in the United States.
[50]
The applicant’s submissions that the Board was
not entitled to draw an adverse inference from the delay in claiming protection
because the Board did not raise this concern, overlook that the onus is at all
times on an applicant to establish their fear of persecution. Moreover, the
transcript of the hearing includes an exchange with counsel for the applicant
where the Board clearly indicated that all issues, except the applicant’s
identity, were live issues for the Board to consider.
[51]
I also note that the Board was not satisfied
that this was indeed the applicant’s travel route and it found that there was
insufficient credible evidence to show that he arrived in the US when he claimed. The Board noted that he could have arrived in Canada as early as 2010 or could have remained longer in the US than stated in his PIF. These
findings were based on the many credibility findings the Board had made arising
from the applicant’s own evidence. Given the deference owed to the Board, the
finding regarding the delay in claiming protection is equally reasonable.
[52]
Failure to claim protection or refugee status in
another country is not determinative of an applicant’s lack of subjective fear,
but it is a relevant factor which affects credibility: Gavryushenko v Canada (Minister of Citizenship and Immigration) (2000), 194 FTR 161, [2000] FCJ No
1209 at para 11. In this case, the applicant’s claimed sojourn in Cuba and the Bahamas and his three day stay in the US before seeking protection in Canada was not the determinative finding. The Board made numerous adverse credibility
findings which led the Board to conclude that the applicant did not have the
political profile alleged, he did not experience what he alleged and he did not
have a well-founded fear of persecution. However, the negative credibility
inferences arising from the delay were not unreasonable.
[53]
As noted by Justice Mosley in Mejia v Canada (Minister of Citizenship and Immigration), 2011 FC 851 at para 14, [2011] FCJ No
1062 [Mejia]:
This Court has held that delay in seeking refugee protection is an
important factor to consider when weighing a claim for refugee status: Heer
v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 330
(F.C.A.) (QL); Gamassi v. Canada (Minister of Citizenship and Immigration)
(2000), 194 F.T.R. 178. Delay points to a lack of subjective fear of
persecution or negates a well-founded fear of persecution. This is based on
the rationale that someone who is truly fearful would claim refugee status at
their first available opportunity: Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at para. 16;
(My emphasis)
[54]
With respect to the applicant’s submission that
the Board should have considered the Safe Third Country Agreement before drawing
adverse conclusions based on his failure to claim protection in the US, because
he intended to claim in Canada where his two brothers would assist him, I note
the Safe Third Country Agreement only permitted his entry into Canada and to
have his refugee claim considered: Lopez v Canada (Minister of Citizenship
and Immigration), 2014 FC 102, [2014] FCJ No 123 at paras 49-50. Otherwise
he would have been returned to the US.
Did the Board make unreasonable credibility findings?
The applicant’s position
[55]
The applicant argues that the Board made several
unreasonable findings which resulted in adverse credibility inferences and the
conclusion that he was not a political activist, did not have a political
profile, and did not have a subjective or objectively well-founded fear of
persecution.
[56]
The applicant also submits that the Board should
have assessed whether he had a well‑founded fear of persecution
regardless of whether he had a political profile, given that all Kurds are at
risk in Turkey. As a Kurdish protester, the applicant was at risk of arbitrary
detention which could constitute persecution.
[57]
The applicant argues that the circumstances are
analogous to those in Basbaydar v Canada (Minister of Citizenship and
Immigration), 2014 FC 158 [Basbaydar], where Justice Russel Zinn
found that the Board missed the point by focussing on the fact that the
applicant was not a person of interest, and found that there is persecution of
Kurdish demonstrators and any involvement in pro-Kurdish demonstrations such as
Newroz would be viewed as support for the Kurdish political party.
[58]
With respect to the credibility findings, the
applicant submits that several negative inferences were based on conjecture or
irrelevant considerations or were not supported by evidence.
[59]
With respect to the finding that the police did
not charge the applicant, he submits that the National Documentation Package,
and other documentation he provided, support the view that the failure of the
police to lay a charge is not an indicator of interest. The applicant submits
that arrest and deprivation of liberty along with physical harm are recognized
as serious forms of harm amounting to persecution.
[60]
The applicant also argues that the Board
misstated his evidence about the documents he provided at the airport when he
departed from Turkey. The applicant answered that he did present his passport
and identity card and also that he was assisted by an agent.
[61]
The applicant notes that he explained he could
leave Turkey without any problems because he was assisted by an agent. He also
explained that he obtained a second passport because his original passport had
been stamped and this stamp could diminish his chances for a visa and argues
that the Board unreasonably rejected this explanation.
[62]
The applicant also argues that the Board
microscopically examined his evidence and ignored his explanations.
[63]
The applicant submits that he explained his
exemption from military service; he obtained it while a high school student
noting that he was a student on his 19th birthday and that he considered this
to be the start of his 20th year which was when he would be subject to
conscription.
[64]
The applicant also points to the Board’s finding
that he was celebrating, rather than protesting, at the Newroz celebrations in
March 2011 and submits that the Board has missed the point. The documentary
evidence establishes that celebrating Newroz, in and of itself, is perceived as
a protest.
[65]
In addition, the applicant asserts that the
Board’s finding that he must have had a valid Canadian visitor Visa in his
passport which he used to facilitate his entry into Canada is nonsensical. He
states that there was no evidence before the Board that he had ever applied
for, or been granted, an entry Visa.
[66]
The applicant submits that the Board’s assessment
of the inconsistency between his POE notes, his PIF and his testimony about his
conscientious objection to military service was not reasonable because the
Board never raised this concern at the hearing and he was not provided the
opportunity to respond.
[67]
The applicant further submits that the Board
ignored and/or misconstrued the evidence leading to erroneous findings.
[68]
For example, with respect to his second
passport, the applicant notes that the Board relied on country condition
evidence indicating that a passport must be obtained in person, but ignored the
documentary evidence which also indicates that there have been reports of
individuals obtaining Turkish passports fraudulently with the assistance of
agents or through other means. The applicant notes that his evidence was that
he was assisted by an agent.
[69]
The applicant also argues that the Board erred
in concluding that the situation of his brother, Naci Durmus, who was tried and
acquitted, is indicative of due process in Turkey. The Board ignored the
significant amount of documentation which describes the overbreadth of Turkey’s terrorism laws.
[70]
The applicant submits that the Board erred in
discounting his corroborative evidence, including the letter from his brother
with respect to the applicant’s exemption from military service.
[71]
He also notes that he was not given an
opportunity to address the Board’s concerns regarding other corroborative
letters. The hand written letter from the BDP was not on “official letterhead”,
but it did contain an official stamp from the BDP. The letter from the
applicant’s half-brother did not mention the activities of the other
politically active brothers, however, the applicant argues that letters must be
considered for what they do say, and not for what they do not say: Mahmud v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 729.
[72]
The applicant adds that the Board ignored the
sworn affidavit provided by his brother in Canada, Ahmet, which states that
Ahmet spoke with both the applicant and their father shortly after the
applicant’s arrests in 2006, 2009 and 2011. The applicant acknowledges that the
content of the letter recounted information told to his brother and was
hearsay, but that it should not have been ignored.
The respondent’s position
[73]
The respondent submits that the Board reasonably
concluded that there was no credible evidence to find that the applicant would
be at risk in Turkey. The Board found several problems with the applicant’s
evidence, including that he did not credibly establish a political profile,
that he did not credibly establish detention by Turkish authorities in March
2011, or that he was even in Turkey in March 2011.
[74]
The respondent argues that the applicant
microscopically criticized the Board’s findings rather than focussing on the
central findings which support the determination that the applicant would not
be at risk in Turkey.
[75]
The Board’s credibility findings are supported
by factual findings. The Board reasonably concluded that even if the March 2011
detention occurred, it was not credible that the police would release the
applicant after two days if they had any particular interest in him due to his
political activities.
[76]
With respect to the second passport, the Board
did not have to accept the applicant’s explanation. The respondent notes that
the applicant did not address the Board’s finding that there was no reliable or
credible evidence to show that he was even in Turkey after June 2010.
[77]
With respect to the applicant’s testimony about
the documents he presented to security officials when departing from Turkey, the Board’s finding that he was being evasive was based on its observation and the
answers he provided to a series of questions. Moreover, the Board’s conclusion
was that it was not credible that the applicant would have been able to leave Turkey without detection if he was a person of interest or if he had the political profile
alleged, regardless of whether he provided a passport or other identity
document.
[78]
The respondent submits that the Board’s findings
about the applicant’s exemption from military conscription were based on the
evidence. There was no credible evidence to establish that the applicant was a
student in February 2011, based on his continuous employment at that time. It
was reasonable for the Board to find that he had no intention of attending
school in Turkey and that he was a student at the time he left Turkey.
The Board’s adverse credibility findings are reasonable
[79]
As noted above, significant deference is owed to
credibility findings made by the Board as it heard and observed the applicant
first hand and considered his evidence alongside the country condition
evidence.
[80]
I do not find any error in the Board’s overall
assessment of the applicant’s credibility. The applicant carefully scrutinized
the decision and argued that some of the Board’s findings are unreasonable and
that its analysis was microscopic. However, the applicant’s scrutiny of
specific findings overlooks the conclusions drawn by the Board, which were
based on more than the applicant’s testimony about his two passports or his
exemption from military service while in high school. The numerous credibility
findings cumulatively provided justification for the Board’s conclusions.
[81]
As the applicant noted, there was evidence
before the Board that police detain pro‑Kurdish demonstrators for a few
hours at a time and then release them. However, this shows – as did the
applicant’s own evidence - that this occurs randomly and not because the
applicant was targeted. This evidence does not support the applicant’s claim
that he was a person of interest to the authorities due to his political
activities.
[82]
The Board’s conclusion that the applicant was
not “protesting” at the Newroz celebrations, rather he was celebrating and
dancing, is based on the applicant’s own testimony. Although participating in
Newroz may be perceived by Turkish authorities as a form of protest, the
Board’s finding was that the applicant was not a specific person of interest.
The evidence of the applicant was that participants were arrested randomly and
detained – as was the applicant. Again, this does not corroborate his claim
that he was a person of interest due to his political activism.
[83]
I do not agree that the Board mischaracterized
the applicant’s testimony regarding the documents presented when he left Turkey or about his military service.
[84]
The applicant is correct that the Board, in its
decision, mistakenly stated that he did not present a passport when he left Turkey in March 2011. The transcript of the hearing establishes that after the Board
clarified the question of what documents the applicant presented when leaving,
he stated that he presented a passport and identity card. However, this
misstatement does not have an impact on the Board’s finding regarding his
departure. The Board’s finding was that the applicant was able to leave Turkey without incident, regardless of the documents he presented and regardless of whether
he was assisted by an agent. The key finding was that if the applicant was
wanted in Turkey or had the political profile he claimed, he would have been
detected leaving the country.
[85]
The Board probed the applicant regarding his two
passports and was not satisfied with his explanation that he needed a second
passport because the original passport had been stamped at the time his visa
was refused. The Board acknowledged that the applicant was assisted by an
agent, and that he had indicated the passport was “improperly obtained”, but
did not accept that the applicant would not have been required to personally
attend to obtain this second passport based on the objective country condition
document. The applicant’s testimony about his two passports was convoluted and
the Board’s reasonable adverse credibility findings were made in the context of
its broader findings that the applicant had not provided sufficient evidence to
establish that he was even in Turkey in March 2011.
[86]
I do not agree that the Board microscopically
assessed the applicant’s credibility. The Board is tasked with assessing the
credibility of applicants and a variety of indicators, including inconsistency
between his PIF and testimony, and within his testimony, omissions and his
overall demeanour, including evasiveness, should be considered. The Board
found that the applicant was evasive when questioned about whether he presented
a passport, but also found he was evasive in response to other questions.
[87]
With respect to the applicant’s exemption from
military service, again the applicant’s evidence was confusing and
inconsistent. He indicated that he was exempted while a high school student at
the age of 19, although military service is required at 21, according to the
country condition evidence. The Board’s credibility findings were based on all
the evidence, including that the applicant was not a student when he would have
been called to serve. Contrary to the applicant’s submission, the Board did
explain why it rejected the letter sent by the applicant’s brother regarding
the exemption from military service. The Board noted that the letter could not
have been obtained from a military office without presenting some proof of the
applicant’s status to obtain the exemption and the letter showed the applicant
was exempted for a different period of time than he had stated.
[88]
With respect to the omission in the applicant’s
POE notes of his conscientious objection to military service, the Board
reasonably found that this omission was not consistent with his stated fear of
persecution in Turkey. Although the Board did not put this concern to the applicant
at the hearing, it clearly indicated that all issues other than identity were
to be addressed. As noted above, the onus is on the applicant to establish his
well-founded fear. I would also note that the POE inconsistency was not the
central finding regarding the applicant’s military service. The Board noted
that the POE interview was the applicant’s first opportunity to make his claim
and that it was not reasonable to have omitted this when presented with the
opportunity. The Board acknowledged, as does the jurisprudence, that the POE
interview notes may not be as comprehensive as the subsequent PIF or Basis of
Claim. I agree with the Board, however, that a key omission, which is later
argued to be a key aspect of the fear of persecution, could reasonably lead the
Board to make negative credibility findings.
[89]
With respect to the applicant’s submission that
the Board made a nonsensical finding that he must have had a Visa to enter Canada, this finding must be read in context. The Board referred to several aspects of the
applicant’s testimony that it had found not to be credible as well as other
circumstances, including: that he was not questioned at the time of his
departure about his exemption from military service; that his 2010 passport
indicated that he was a student; that it was not known if his student status
was indicated in his second passport issued in 2011 because he no longer had
the second passport; the absence of any information to establish that he had
applied for a student Visa, as he said he had in 2010; and, the absence of
evidence that he had any problems entering Canada in 2011. The Board then found
“on balance it (is) reasonable to conclude that the
claimant had acquired the requisite visa to enter Canada on this new passport”,
which he applied for prior to March 2011. The Board added that the fact that
the applicant had not provided the second passport (because he had said his
agent took it) did not mean that he hadn’t used it to enter Canada.
[90]
The finding is not nonsensical when the
applicant’s story and the Board’s finding of an overall lack of credibility are
considered.
[91]
The Board’s attribution of low weight to letters
from the BDP and the applicant’s half‑brother was explained in the
decision. The Board is not required to mention every piece of evidence, and
did not err in failing to mention the affidavit from the applicant’s brother
Ahmet that recounted information told to him, acknowledged to be hearsay.
[92]
Finally, as the applicant noted, the Board was
required to assess whether the applicant had a subjective and objectively
well-founded fear of persecution, regardless of whether he was a person of
particular interest to the authorities in Turkey.
[93]
The Board found that the applicant did not have
the profile he claimed and was not of particular interest to the authorities.
The Board then went on to find that there was no evidence that Kurds as a group
were persecuted. The Board also found that if he were a conscientious objector,
he may be prosecuted, but this was not persecution. Based on the numerous
credibility findings, the Board concluded that the applicant had not established
that he had a well-founded fear of persecution. Unlike Basbaydar, which
the applicant referred to, the Board did consider his fear of persecution as a Kurd,
but could not find that this had been established.
[94]
The Board’s conclusion that the applicant had
not established even a perceived political profile and had not established that
he was a person of interest to the Turkish police or other authorities was not
the determinative finding, but was a key credibility finding. The Board
considered more generally, as it is required to do, whether the applicant had a
well-founded fear of persecution. Because of the lack of credible evidence, the
Board reasonably concluded that he did not.
[95]
In conclusion, there was no breach of procedural
fairness arising from the translation of the Board’s questions or the
applicant’s answers that had any bearing on the Board’s adverse credibility
findings.
[96]
The Board’s decision was justified, transparent
and intelligible and falls within the range of reasonable outcomes. The
cumulative nature of the credibility findings amply supports the Board’s
decision.
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