Docket: IMM-4019-14
Citation:
2015 FC 834
Calgary, Alberta, July 9, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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EMRULLAH AKGUL
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Respondent
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JUDGMENT AND REASONS
[1]
The Refugee Protection Division [RPD] found that
Mr. Akgul is a Convention refugee as he met the requirements of section 96 of
the Immigration and Refugee Protection Act, SC 2001 c 27. The Minister
challenges that decision and asks that it be set aside.
[2]
Mr. Akgul, a 33 year old Kurdish Sunni Muslim,
is a citizen of Turkey. He sought Canada’s protection claiming that he feared
returning to Turkey because he is a conscientious objector and will not accept forced
military service, which is a requirement in Turkey. He alleged that he would
be imprisoned and treated very harshly for refusing to serve in the military.
[3]
The decision under review is brief. That is perhaps
not surprising as the claim was allowed and the Minister took no part in the
hearing.
[4]
The RPD found Mr. Akgul credible and states that
it “finds that he is a conscientious objector based on
his personal religious or spiritual beliefs.” Further, the RPD:
… finds that the claimant has met both the
subjective and objective elements of the claim. The documentary evidence
supports his allegations that he will be imprisoned for three months at a time
should he return to Turkey and refuse to complete his military service at which
time he would be released and forced to complete it or be imprisoned again for a
longer duration.
The panel has taken into consideration also
the numerous documents with regard to the treatment of conscientious objectors
in Turkey by the Turkish authorities.
[5]
The Minister submits that the RPD erred in that it
either made no assessment of the risk of persecution or failed to apply the
governing jurisprudence in that regard.
[6]
In my view, the Minister’s application must
fail.
[7]
The RPD made a clear and unchallenged finding
that Mr. Akgul is a conscientious objector. He testified that it is his belief
that killing is always wrong and for that reason he is opposed to military
service. It is also not challenged that the RPD correctly found that the law
in Turkey is that those who do not accept their military service are
imprisoned, and repeatedly so.
[8]
In Ates v Canada (Minister of
Citizenship and Immigration), 2005 FCA 322, the Federal Court of Appeal
held that in a country where military service is compulsory, and there is no
alternative thereto, repeated prosecutions and incarcerations of a conscientious
objector for the offence of refusing to do his military service, does not constitute
persecution based on a Convention ground. The Minister properly concedes that “repeat prosecutions for conscientious objection could
give rise to persecution but that an individual inquiry is always necessary
[emphasis in original].”
[9]
The Minister also concedes that “it is possible that a conscientious objector might face a
risk of persecution in this context if, for example, he faced a longer sentence
or worse prison conditions than other evaders, but this is a matter that
requires assessment by the RPD – which assessment is nowhere evidenced [in] the
RPD’s reasons in this case.”
[10]
In my view, it is not correct in law to suggest
that a claimant found to be a conscientious objector can only establish a risk
of persecution if he can show that his treatment in prison will be worse than
other conscientious objectors. The issue is whether the treatment of
conscientious objectors is worse than that experienced by others who have been
convicted of an offence. If worse treatment is found then that may amount to
persecution and not mere prosecution of a crime of general application.
[11]
In the decision under review, the RPD stated
that it had taken into consideration the documentary evidence “with regard to the treatment of conscientious objectors in
Turkey by the Turkish authorities.” It does not, as the Minister notes,
identify precisely what evidence in the package of documents it relied upon in
finding that Mr. Akgul would face persecution. However, I agree with his
counsel that the decision in Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, mandates
that the decision not be set aside if the reasons allow the reviewing court to
understand why the decision-maker made its decision and to determine whether
the conclusion is within the range of acceptable outcomes.
[12]
In this case, the reasons do permit the court to
appreciate why the RPD found that the treatment in Turkey would amount to persecution;
namely, the treatment that conscientious objectors receive from the authorities.
The relevant treatment is not simply repeated terms of imprisonment. Rather,
the record shows that conscientious objectors are viciously assaulted and
inhumanely treated by authorities and others at the encouragement of the
authorities simply because they have refused military service. Accordingly,
the RPD’s decision is well within the range of reasonable outcomes.
[13]
Neither party proposed a question for
certification, nor is there one on these facts.
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