Docket: IMM-68-15
Citation:
2015 FC 1226
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 29, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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VELI EKER,
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SEBRE EKER,
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BENSU EKER,
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BERKAY EKER
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Applicants
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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 applicants are citizens of Turkey. They are
challenging the legality of a decision of the Refugee Protection Division [RPD]
of the Immigration and Refugee Board rejecting their claim for refugee
protection on the main ground that “the applicants’
narrative is a fabrication”.
[2]
The principal claimant, Mr. Veli Eker [applicant],
is of the Alevi faith and of Kurdish ethnicity; he is from the region of Adana,
which is majority Kurdish and Alevi. His fear of persecution is based on his
perceived political opinion, and that of the other applicants is based on their
family relationship with the applicant. In the narrative that accompanied his
Personal Information Form [PIF], the applicant explains that on June 12, 2011,
during the general election in Turkey, he worked as a scrutineer [monitor] for
the Peace and Democracy Party [BDP] in the Dumlupinar borough. Having noticed
that monitors from other parties had removed votes for the pro‑Kurdish
party from ballot boxes, he got into an argument with them. Police arrived on
the scene, arrested him and took him to the police station, where he was
detained for eight hours and beaten a number of times. The police accused him
of being a separatist, propagandist and terrorist; they interrogated him about
the BDP, about his relatives and his contacts, and before releasing him, told
him that his name had been added to a list and that he was now under surveillance.
[3]
In fact, the applicant alleges that, three
months after that first incident, on September 8, 2011, two plainclothes
police officers showed up at his place of business and took him away in a van.
They detained him in a garage or basement where he was interrogated about the
BDP and the names of its directors. He told them that he was not a party member
and did not know who the directors were, but the police officers did not
believe him. The police beat him, insulted and threatened him, and before
releasing him, pointed a firearm at his throat and warned him that they would
detain his wife the next time. Following that second incident, the applicant
decided to abandon his business, leaving his friends to look after his affairs.
His children were living off and on at his father’s, while he and his wife
stayed at his sister’s, also on an occasional basis. In the meantime, employees
of the applicant told him that police had showed up at his place of business
asking them why he was not at work. The applicant avoided going out at night
and sought a solution to leave the country. The applicant hired a former police
officer whom he paid to help obtain passports for himself and his family. They
obtained visas for the United States; on January 21, 2012, the applicants
arrived in New York. The following day they took a bus to the border crossing
at Lacolle and claimed refugee protection in Canada.
[4]
Given that it did not believe the applicant’s
narrative of persecution on the basis of imputed political opinion, the RPD
concluded that the applicants were not “Convention refugees” within the
meaning of section 96 of the Immigration and Refugee Protection Act, SC
2001, c 27) [Act], nor were they “persons in need of protection” within the
meaning of subsection 97(1) of the Act, in light of the fact that according to
the documentary evidence it was unlikely that the applicants would be
persecuted or be at risk on the sole basis that they are of Kurdish origin. The
parties agree that a standard of reasonableness applies to reviewing findings
of credibility and fact made by the RPD (Dunsmuir v New Brunswick, 2008 SCC
9 at para 47 [Dunsmuir]).
[5]
Neither the intelligibility nor the transparency
of the RPD’s grounds for its dismissal are disputed in this case. Let us begin
with the reasons for which the RPD did not believe the applicants’ narrative. First,
the RPD found major inconsistencies and contradictions in the answers provided
by the principal applicant in his “Claim for Refugee
Protection in Canada” form when he arrived in Canada on January 22,
2012, compared to those given in his Personal Information Form [PIF] and during
his testimony at the hearing:
(a)
In his “Claim for Refugee Protection in Canada” form,
the applicant indicated that in 2011 he had been a member or supporter of the
Democratic Society Party [DTP], without, however, playing an active role, and
made reference to the election on June 3, 2011 – when, in actual fact, that
election had been held on June 12, 2011. However, the DTP had been banned since
2009. In later testimony at the hearing the applicant indicated that he had
been a supporter and adherent of the BDP, and that he had worked as a
scrutineer for the BDP on the day of the election.
(b)
In his PIF and testimony, the applicant claimed
to have been detained by police on two occasions, namely, for eight hours and
for one hour respectively. He further alleged that his employees had warned him
that the police had been to his place of business looking for him. However, in
his “Claim for Refugee Protection in Canada” form, the applicant declared that
he had never been sought after, arrested or detained by the police. When questioned
about this contradiction, the applicant explained that in his view, being held
for eight hours and for one hour respectively did not amount to detention. In
addition, he explained that he had not been sought by police because no written
arrest warrant had been issued against him. There are further significant
contradictions or omissions with regard to where the applicant was detained.
(c)
In his PIF, the applicant stated that he had
abandoned his flower shop after his second detention by the police on September
8, 2011. He noted that his children would often stay with his father and that
he and his wife would stay with his sister. Yet in his “Claim for Refugee
Protection in Canada” form, the applicant stated having lived in the same place
from January 2008 until leaving Turkey in January 2012. Furthermore, the RPD
pointed out that the applicant’s son had continued attending the same school
until December 2011. Accordingly, the RPD concluded that the applicants were
not in hiding up to the moment they left the country in January 2012.
(d)
In his PIF, the applicant stated that a former
police officer had helped him obtain passports to leave Turkey, while in his “Claim
for Refugee Protection in Canada” form he indicated that he had done this
himself, which is yet another contradiction.
[6]
The RPD also found a number of implausibilities
with respect to the applicant’s allegations. For example, the RPD found it
implausible that the police would detain, torture and interrogate the applicant
about the BDP and its leadership, given that such information was in the public
domain and the applicant was not even a member of the BDP.
[7]
The applicants now challenge before this Court each
and every one of the aforementioned credibility or implausibility findings made
by the RPD. They argue that the RPD showed excessive zeal with respect to the
terminology used by the applicant when he spoke of the BPD, and with regard to
precise dates, when, from a substantive perspective, the applicant’s testimony
had not changed, which is vigorously disputed by the respondent in this case. During
the hearing of this application for judicial review, the applicants’ learned
counsel invited the Court to review the applicant’s testimony in its entirety. The
applicant explained to the RPD that even if the name of the BDP did not appear
on the illegally rejected ballots, those ballots had been cast for independent
candidates from the pro-Kurdish party that had succeeded the banned party (the
former DTP). In fact, the BDP was officially created after the election. However,
a letter from the BDP – the authenticity of which was not disputed – corroborated
the applicant’s allegations about his political involvement and arbitrary
arrest. Moreover, the applicant points out that he had clarified in his testimony
the apparent “inconsistencies” and “contradictions” found by the RPD. For
example, he explained that he had had difficulty hearing the interpreter who
had assisted him by telephone at the port of entry, and that he had initially
misunderstood some of the questions. Furthermore, when he completed his claim
for refugee protection form at the port of entry, he did not believe it was
necessary to mention that he had been detained for eight hours. He also asserts
that he pointed out that he had not been sought by police because no warrant
for his arrest had been issued. The applicant further submits that he had never
claimed to have lived in hiding; he had written his principal address in his PIF
and not that of his sister because he and his wife had only stayed with his
sister on a few occasions. With regard to his son, the applicant claims that it
was pure conjecture on the part of the RPD to insinuate that, given that his
son had gone to live with his father, he must have changed schools. Lastly, the
applicant reiterates that he remained proprietor of his flower shop until he
left Turkey, but that he had stopped showing up on the premises. As to the RPD’s
finding that it was implausible that the police would have detained the
applicant to question him about the BDP when the party was known to the public,
the applicant points out that he was initially arrested for having reported on
fraud during the 2011 election, and that he had been accused of terrorism. He
was subsequently threatened and stopped by police who wanted to know about his
involvement within the BDP and obtain information about the party’s leadership.
[8]
In this case, I am not convinced by the
aforementioned arguments put forth by the applicants. I find the impugned
decision to be reasonable and the dismissal of the claim for refugee protection
to be an acceptable outcome having regard to the evidence in the record and the
specialized expertise of the RPD, which is better placed than the Court to
assess the applicants’ credibility. Furthermore, it should be remembered that
judicial review is not an appeal on the merits of the decision rendered. As
this Court has noted in Alyafi v Canada (Minister of Citizenship and
Immigration, 2014 FC 952 at paragraph 18:
The role of a reviewing court is by
definition limited. It is well settled by case law. Its analysis will be
concerned with the existence of justification, transparency and intelligibility
within the decision-making process, and also with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir, above at para 47). It even goes so far as affording great
deference to the interpretation that the administrative tribunal may make of
its home statute when it does not concern jurisdiction or a question of law of
central importance for the system. This does not refer to a decision that
another decision-maker with knowledge of the same facts and the applicable law
may have made, but only to a “reasonable” decision—even if it is not the best
decision in the circumstances and it opens itself to criticism. …
[9]
The present application for judicial review must
fail. I substantially agree with the reasons for dismissal provided by the
respondent in its written memorandum and repeated at the hearing of this matter
by counsel for the respondent. At the risk of repeating myself, it is well
established that it is not the Court’s role to substitute its assessment of the
evidence or to reassess the weight given by the RPD to certain particular
elements of the evidence in the record. The weight to be assigned to this or
that piece of evidence is a matter exclusively for the RPD. The Court will
intervene only if the RPD’s findings were made in a perverse or capricious
manner or without regard for the material before it. That is not the case here.
[10]
With regard to the importance that was assigned
to the applicant’s previous statements made in his “Claim for Refugee
Protection in Canada” form, the RPD “has complete
jurisdiction to determine the evidentiary weight to be given to the point of
entry notes and may draw negative conclusions from contradictions and
inconsistencies in the evidence, including differences between the statements
made at the point of entry and any subsequent testimony” (Singh v Canada (Citizenship and
Immigration), 2008 FC 453 (CanLII) at para 17). Thus, the RPD committed no
reviewable error by examining the answers given at the port of entry by the
applicant. In this case, the contradictions in the applicant’s narrative relate
to key elements of the applicants’ claim. In particular, the applicant was
mistaken about, or contradicted himself on, the date of the general election,
on the name of the party with which he was associated, the detention to which
he was subject and on whether he had been sought by police. The applicant
simply reiterated explanations that had already been considered or dismissed by
the RPD.
[11]
Moreover, the RPD committed no reviewable error
by dismissing the letter of attestation of political activity apparently issued
by a representative of the BDP. Such a letter does not prove its contents – as
would an official and genuine birth certificate, for example. As for the
explanations provided with regard to the BDP by the applicant, it was open to
the RPD to dismiss these to the extent that, taken cumulatively, the
contradictions and implausibilities found were of sufficient importance for the
RPD not to believe the applicant, as was the case here. The contradictions found
by the RPD are determinative and are all based on the evidence in the record.
[12]
Furthermore, the impugned decision must be read
as a whole. In this case, the RPD did not conduct a microscopic analysis of the
evidence and its concerns with regard to the veracity of the applicants’
narrative touch on key elements of the claim. The reasons for not believing the
applicants’ are also expressed in an intelligible manner and support the
findings of lack of credibility or implausibility made by the RPD. Although it
is possible that another decision maker may have reached a different conclusion,
cumulatively, I am of the view that the general finding of a lack of
credibility with regard to the fear of persecution on the ground of presumed
political opinion falls within “a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir at para 47).
[13]
Lastly, the applicants argue in the alternative
that the RPD engaged in a selective reading of the documentary evidence in the
National Documentation Package on Turkey [Package], by citing only a brief
excerpt to conclude that Kurds are not persecuted in Turkey. Furthermore,
having assigned no credibility to the applicants’ narrative or their fear of
persecution based on imputed political opinion, on the subject of objective
conditions, the RPD referred to the Package, and more specifically to a
document entitled “Operational Guidance Note”
published by the U.K. Home Office in May 2013. According to the passage cited
by the RPD, although Turkish citizens of Kurdish ethnicity may be victims of
discrimination in Turkey, this generally does not reach the level of
persecution, nor does it violate Article 3 of the European Convention on Human
Rights, particularly when the claim for refugee protection is based solely on
persecution on the grounds of the claimants’ Kurdish ethnicity. Given the
aforementioned credibility issues emphasized with regard to allegations related
to the applicant’s role in the election of June 12, 2011, the RPD did not act
in an unreasonable manner in finding that it was unlikely that Kurdish origin –
in and of itself – would be a ground of persecution. (Rahaman v Canada (Minister
of Citizenship and Immigration), 2002 FCA 89 (CanLII), [2002] 3 FCR 537 at
para 29; Sellan v Canada (Minister of Citizenship & Immigration),
2008 FCA 381 at paragraphs 2and 3).
[14]
For these reasons, the application for judicial
review will be dismissed by the Court. Counsel agree that no question of
general importance arises in this matter.
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