Docket: IMM-5506-14
Citation:
2015 FC 772
Ottawa, Ontario, June 19, 2015
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
MURAT
BUYUKSAHIN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Mr. Murat Buyuksahin is
a citizen of Turkey. He is an ethnic Kurd and an Alevi. He was detained and
severely mistreated on numerous occasions by the police and also assaulted by
civilians in Turkey. He claimed refugee status in Canada based on his
ethnic-religious background.
[2]
In 2002, he was campaigning for a relative, Veli
Buyuksahin, and the People’s Democratic Party [DEHAP] in his hometown of
Adiyaman. He was detained and interrogated by police. When he failed to
provide the information the police were looking for he was tortured and held
for three days.
[3]
In March 2006, he was detained by police after
distributing flyers. He was accused of having ties to the Kurdistan Workers’
Party [PKK], interrogated and mistreated for 48 hours.
[4]
In 2009, while travelling with others to
commemorate the Sivas massacre, the applicant’s minibus was stopped and
searched. When he questioned why the soldiers were searching them, he was
struck and the group was forced to wait ten hours, thus missing the event.
[5]
During the 2011 elections, the applicant again
was working for his relative, Veli, who was running as an independent Peace and
Democracy Party (BDP) candidate. Leading up to the election, the police
visited the BDP office, searched it, and arrested five people including the
applicant. He was interrogated and detained for one day.
[6]
In February 2012, the applicant saw two men, one
he recognized as a member of the Turkish nationalist party [MHP], vandalizing
and drawing a symbol on a building inhabited by Kurdish Alevis. The applicant
questioned the men about their actions. He was beaten and told that the men
did not want Alevis in Turkey and that they were going to kill them all. The
following day, he learned that all of the buildings in which his Alevi
relatives lived had been similarly marked – reminiscent of the 1978 Alevi
massacre in Maras.
[7]
The applicant reported the incident to police
and identified one of the men by name. The police took his telephone number
and said they would contact him after their investigation.
[8]
The same day he saw five to six people outside
his house. Fearing an attack, he called the police, but they never arrived.
The next day the applicant was confronted by three individuals (including the
two who were involved in marking the building). He was pulled from his house
and beaten by them; as they left they threatened to eliminate him.
[9]
The applicant’s mother called the police who
came and took him to the police station where he was left waiting for five
hours. While waiting, the individuals who had assaulted him arrived and again
beat him in the presence of the police who did not intervene right away. The
police drove the applicant home, asked him to be an informer and told him not
to tell anyone what happened at the police station.
[10]
Fearing for his life, and being convinced the
police would not protect him, the applicant left his
hometown and soon thereafter his country of nationality, travelling through the
USA before arriving in Canada three days later.
[11]
The Refugee Protection Division [RPD] found that
the applicant was not a Convention refugee or a person in need of protection.
The determinative issues were whether he had a well-founded fear and whether he
had an available internal flight alternative [IFA].
[12]
The RPD was not persuaded that the applicant had
a well-founded fear of persecution. In this regard, the RPD made the following
findings:
- Each time the
applicant was detained; he was released and not charged.
- The applicant
was able to leave the country on his own passport without difficulty.
- No evidence of a
summons or warrant has been issued for the applicant.
- There was no
evidence that the individuals that beat up the applicant were members of
the MHP and not just bullies and racists.
- When the police
failed to break up the beating that the applicant faced at the police
station, it was the failings of one officer, not general police complicity
with Turkish nationals.
- The last time
the applicant faced issues with his political opinion was in 2011, and his
relative Veli has not faced any problems.
- After 2011, the
applicant appears to have disengaged from political activities.
- The applicant
also identified extremist Muslims as a group he fears, but there is no
mention of them in his PIF narrative.
- The applicant
failed to claim asylum in the USA.
[13]
The RPD also found that the applicant had a
viable IFA in Ankara or Istanbul, and made the following findings in that
regard:
- The applicant is
from a small town where he is very well known.
- The problems the
applicant faced were almost exclusively in his home area.
- The fact that he
was able to leave the country was evidence that the Turkish authorities
were not actively pursuing him.
- When asked if he
could go to Ankara or Istanbul, the applicant stated he would have to
register in both cities and his home address would be revealed and the
same problems will come up.
- The RPD found
that there was insufficient evidence to indicate he would face persecution
in Ankara or Istanbul.
[14]
The RPD also made the
following findings with regards to the documentary evidence submitted by the
applicant:
- The applicant
submitted a Psychiatric Report concluding that he has major depressive
disorder, and a letter from a medical doctor concluding that his crooked
nose, nasal septum deviation and scarring at his left eardrum are
consistent with a history of trauma in Turkey.
- The RPD
concluded the medical documents were not persuasive evidence that the
applicant would be persecuted should he be returned to Turkey.
- The applicant
submitted letters from the Canadian Alevi Culture Centre, the Toronto
Kurdish Community & Information Centre and the BDP Party, attesting
that he is a member of each of the respective groups.
- The applicant
also submitted a letter from his uncle Dede, who spoke to the targeting of
the applicant by Sunni zealots and security forces. The RPD noted that
this was not in the applicant’s PIF narrative.
- Lastly, the RPD
noted (wrongly) that a letter from the applicant’s relative Veli was not
included and the RPD made a negative inference from this fact.
[15]
For the reasons that follow, I find the decision
unreasonable and it must be set aside.
[16]
The RPD, which made no specific credibility
finding with respect to the interactions between the applicant and the state
actors; however, it drew an adverse inference from the applicant’s apparent
failure to submit a letter from his relative, Veli. As admitted by the
respondent, the applicant did in fact provide such a letter. The respondent
submits that this is an “immaterial” error,
which did not impact the finding that the applicant had no subjective fear and
had an IFA. Had that been the only error in the resonating of the RPD, the
court might have accepted that submission and dismissed the application;
however, in the court’s view it is but one of several errors made by the RPD.
[17]
The RPD concludes that the applicant’s relative,
Veli, has not faced any problems in Turkey, suggesting that the applicant, who
had a lower profile, would not have any. However, the RPD made this finding
without ever questioning the applicant on the issue and without any evidence in
that regard. Moreover, the finding is contrary to evidence in the record
regarding the arrests and imprisonment of all executive members of the BDP. In
light of the perverse finding made, one can only conclude that the RPD failed
to engage with the documentary evidence of country conditions for Kurds and
Alevi in Turkey.
[18]
As noted above, the RPD accepted that the
applicant had been detained multiple times by the police and had been
victimized by them; however, it found that he is not specifically wanted by
them. The applicant submits, and I agree, that the issue the panel was
required to address had nothing to do with whether the applicant had been
charged or was a wanted man – he never said that he was. I agree with the
applicant that the situation here is akin to that in Basbaydar v Canada
(Minister of Citizenship and Immigration), 2014 FC 158, where I wrote, at
paragraph 14:
The RPD focused on the fact that Mr. Basbaydar had not
demonstrated that he was a person of interest for the police. This was not
what he was required to show. He simply had to show that he has a well-founded
fear of persecution by reason of his political opinions or nationality and, in
my view, this well-founded fear is borne out in the documentary evidence. The
evidence shows that even peaceful demonstrators and ordinary activists are at
risk of disproportionate punishment and specifically that there is increasing
persecution of Kurdish demonstrators. In attempting to impugn the Applicant's
credibility, the RPD itself observed that "many young and ordinary
activists" are arrested in Turkey.
[19]
As was recently stated by Justice
Mactavish in Boyraz v Canada (Minister of Citizenship and Immigration),
unreported, April 15, 2015, IMM-1049-14: “The question for the Board was not, however, whether the evidence
established that the Turkish authorities were looking for Mr. Boyraz, but
whether there was more than a mere possibility that he would face persecution
in Turkey.”
[20]
The RPD concluded, notwithstanding the testimony
of the applicant, that there was insufficient evidence to conclude that his
attackers were part of the MHP. The RPD failed to appreciate that the
political affiliation of the attackers is irrelevant. It only matters that the
applicant is being attacked for his political opinion.
[21]
The RPD found that the failure of the police to
stop the applicant’s beating in the police station was not a failure to provide
protection but only one police officer’s failing. That finding may have been reasonable
had there not been abundant documentary evidence that points to a general
failure of the police in Turkey to protect persons like the applicant. The
analysis of state protection done by the RPD failed to consider the documentary
evidence.
[22]
The RPD rejected the applicant’s
testimony that if he were to return to Turkey he would again become involved in
pro-Kurdish and Alevi human rights protests and activities for three reasons:
(i) because he had disengaged in political activities after his release from
police custody in 2011, (ii) because “one must consider
why he would choose to leave [Turkey] if he was strongly committed to the
Kurdish-Alevi case” and (iii) he had only attended Kurdish and Alevi
centres in Canada which the panel described as “hardly
what one would depict as political activism.”
[23]
With respect to the first reason offered by the
RPD, the disengagement in political activities, the RPD fails to engage with
the applicant’s evidence that he did so following detention by the police
during which he was told “if I
continued my avid interest in the party, they would ‘finish me’.” He attests that “their
threats worked on my mind so that I could not do any more for the party before
the election via intimidation, detention, interrogation, torture, threats,
slander and most importantly threats to harm my family.”
[24]
With respect to the second reason offered by the
RPD, that he would not likely have left Turkey if he was a political activist,
ignores the fact that he had been detained, tortured, and threatened with death
by the authorities if he continued his actions. The fact that he sought refuge
in Canada and did not stay in Turkey is equally consistent with his testimony
that he feared he would be killed if he remained in Turkey. If that was a reasonable
fear (and it appears to the court on the record here that it was), then the
steps taken by the applicant are not at all inconsistent with him being a
political activist. If all activists were required to remain in their country
and die to prove their political beliefs, there would be no need of surrogate
protection under the Convention for political refugees.
[25]
With respect to the third reason offered by the
RPD, that his Canadian activities were “hardly what one would depict as political activism,” this ignores the fact that he has had a short tenure in Canada, that
he has joined Canadian organizations supporting the same goals he supported in
Turkey, and fails to indicate what more he could be expected to do here to establish
his political views.
[26]
The RPD inferred that that the applicant would
not continue his political activities if he returned to Turkey, notwithstanding
his evidence to the contrary. The inference of the RPD is unreasonable because
it fails to recognize that the applicant has a history for advocating for many
years. He stopped only because he feared for his life and his family. To
suggest that a claimant can safely return because he will have abandoned his
political views in order not to be persecuted, is to turn the refugee system on
its head.
[27]
Lastly, the RPD found there was no subjective
fear because the applicant failed to claim asylum in the USA. This ignores
that he was in transit to Canada which was always his destination where he
intended to seek refuge, and that he was only in the USA for three days. He
testified that he was going to Canada because he has family here and there is a
higher chance of acceptance. A failure to claim after a few days in a third
country is not detrimental: Jarma v Canada (Minister of Citizenship and
Immigration), 2011 FC 265.
[28]
In addition to these errors that led to the
finding that the applicant did not have a subjective fear, the RPD erred in its
IFA analysis.
[29]
First, I agree with the submission of the
applicant, that an IFA analysis is appropriate only when the agent of
persecution is not the state. Here the agents of persecution were alleged to
include state authorities. Indeed there is evidence in the record that
throughout Turkey (including the two cities specifically found to be an IFA) persons
situated similarly to the applicant in terms of their ethnic-religious
background and political activities in support thereof are regularly detained,
threated, and assaulted by state authorities. As was stated by counsel, this
is not a situation that is a local police issue – it is a country wide issue,
because the persecution is occurring on a state-wide basis.
[30]
If the RPD finds that the agent of persecution
is the state then, in my view, the burden to establish that there is an IFA
within that country where the state persecution is not happening or where a
claimant would be protected by the state must surely rest on the party asserting
it and not on the claimant.
[31]
For these reasons, this claim for protection
must be re-assessed by a different Board member. Neither party proposed a
question to be certified nor is there one on these facts.
Email this Content