Docket: IMM-3976-16
Citation:
2017 FC 375
Toronto, Ontario, April 19, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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BAYRAM DAG
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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
I.
Background
[1]
This is an application for judicial review of a
decision [Decision] of the Refugee Protection Division [RPD or the Board] of
the Immigration and Refugee Board dated August 31, 2016, concluding that Mr.
Dag [the Applicant] is neither a Convention refugee nor a person in need of
protection pursuant to ss. 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act or IRPA]. The Applicant is a Turkish
citizen of Kurdish ethnicity, and of the Alevi faith.
[2]
In 2016, the Applicant’s son visited the United
States [U.S.] with his school, and the Applicant was granted a U.S. visa to
accompany him. At the end of the school trip, the Applicant entrusted the care
of his son to school officials. The son returned to Turkey with the school and
the Applicant crossed the border from the U.S. into Canada. He sought refugee
protection in Canada on May 12, 2016; the RPD rejected his claim on August 31,
2016, due to credibility issues. Among the RPD’s various negative credibility
findings was the fact that it did not believe the discrimination claims based
on his (accepted) Kurdish ethnicity. Furthermore, the RPD found a lack of
subjective fear due to failure to claim asylum when the family went on vacation
to Switzerland three years prior to the claim, at a time when the Applicant
claimed to fear persecution.
[3]
In addition, the Applicant claimed that he
feared the same risks of persecution for his son in Turkey, having the profile
of Kurdish ethnicity and Alevi faith. However, when questioned why the
Applicant sent his son back from the U.S. to the alleged ethnic and religious-based
risks in Turkey, rather than bringing him along to Canada, the Applicant first stated
that the school was able to accompany his son back to Turkey because the
Applicant had signed a notarized authorisation allowing the school to do so. However,
when the RPD asked the question again to better understand why the Applicant
did not bring his son to Canada if indeed he was to face persecution in Turkey,
the Applicant answered that the school did not allow him to bring his son to
Canada. The RPD wrote that it simply did not believe this response, as it was
unclear why the Applicant could not revoke the authorisation and bring his son with
him to Canada. This undermined the Applicant’s credibility.
[4]
Ultimately, the RPD did not believe any part of
the Applicant’s story, both because of a lack of subjective fear, and numerous
inconsistencies, contradictions and implausibilities in testimony, in addition
to instances of hesitation in answering questions. These negative credibility
findings as a whole were not challenged in this judicial review, with the
exception of one short passage, where the Applicant contended that the RPD misapprehended
his testimony.
[5]
Instead, the Applicant focused his arguments on
the RPD’s failure to conduct a s. 97 risk analysis based on his ethnicity and
religion, which he contends was a fatal error: the Applicant claims that the RPD
should have examined the danger of returning to Turkey as a failed Kurdish
Alevi refugee claimant. I find that although the Applicant raised a fear of
lack of protection during the second day of RPD hearings, the Board, in these
particular circumstances, did not err by failing to conduct a s. 97 analysis,
for the reasons explained below.
II.
Analysis
[6]
The parties agree that the standard of review
for a subs. 97(1) finding under IRPA is reasonableness; the Court may intervene
only where the decision lacks justifiability, intelligibility and transparency,
and falls outside the range of possible, acceptable outcomes (Dunsmuir v New
Brunswick, 2008 SCC 9 at paras 47 and 51 [Dunsmuir]).
[7]
The Applicant claims that the RPD erred in
failing to evaluate whether a refused Kurdish (Alevi) refugee claimant would be
in need of protection. Despite determinative credibility findings with respect
to his s. 96 claim, the Applicant maintains that the RPD nonetheless had to
address the objective evidence he provided that supported his subs. 97(1)
claim. In failing to do so, according to the Applicant, it erred.
[8]
There are several reasons why I cannot agree
with the Applicant in this circumstance. Before explaining them, I will briefly
review the subs. 97(1) jurisprudence most relevant to this matter.
[9]
The Federal Court of Appeal held in Canada ( Citizenship and Immigration) v
Sellan, 2008 FCA 381 [Sellan] at para 3, that:
[…] where the Board makes a general finding
that the claimant lacks credibility, that determination is sufficient to
dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim. The claimant bears the onus of demonstrating there was such evidence
[emphasis added].
[10]
The Respondent cites numerous decisions both pre-dating
and post-dating Sellan, to support its position that the negative
credibility findings in this matter were determinative, including three recent
decisions of this Court, namely Gebetas v Canada (Citizenship and
Immigration), 2013 FC 1241[Gebetas]; Kusmez v Canada (Citizenship
and Immigration), 2015 FC 948 [Kusmez]; and Eker v Canada
(Citizenship and Immigration), 2015 FC 1226 [Eker]. In each of these,
like in the case under review, the applicants were refugee claimants from
Turkey of Alevi faith and Kurdish ethnicity. And in each case, the Board made
fatal credibility findings, determining that the applicants had put forward
insufficient credible and trustworthy evidence to support positive findings.
[11]
In Gebetas, the Court held that a general
finding of non-credibility derived from omissions, contradictions and
implausibilities regarding central allegations of the claim can be dispositive
of the claim and affect all relevant evidence submitted (Gebetas at
paras 26-29). In Eker, the Court held that the Board’s finding that the applicants’
Kurdish origin was itself insufficient to be a ground of persecution (Eker
at para 13). And in Kusmez, like in this case, the applicants criticized
the Board for failing to consider the risk of persecution based on their
ethnicity or faith under s. 97. The Court found (Kusmez at paras 20-21) that
the adverse credibility findings permeated all aspects of the applicants’
claims, and that there was insufficient documentary evidence in the record to
support a positive disposition of the claim.
[12]
Considering this jurisprudence, and in light of the
record, I find the RPD’s Decision to be reasonable, and do not agree that the RPD
erred in failing to conduct a s. 97 analysis in this case. First, the RPD’s
credibility findings are reasonable. The RPD undertook a comprehensive review
of the Applicant’s experiences, work history, and travel to and from Turkey, and
noted an absence of any evidence of any discrimination, let alone persecution.
These conclusions were based on two days of oral testimony, as well as the
written evidence before the RPD.
[13]
The purpose of a s. 97 analysis is to determine
whether the Applicant is in need of protection in Canada due to danger or risk if
returned to Turkey. Given that the RPD found that (i) the Applicant’s story was
wholly untrue (in its original words, “le tribunal… ne croit rien de cette histoire”), and (ii) he was never subject to any discrimination, let alone
persecution, the record simply does not bear out what danger or risk awaits him
in Turkey. The Applicant provided no documentary evidence to address the alleged
risk raised for returning asylum seekers with his ethnic and religious profile.
[14]
The law is clear that it is the claimant’s case
to make: the onus rests squarely on him or her to present the evidence and
information necessary to establish the claim (Kusmez at para 21, relying
on Ward v Canada (Minister of Employment and Immigration), [1993]
2 SCR 689 [Ward]). While Ward focused on a different aspect of
refugee law (state protection under s. 96 persecution), appellate courts have ruled
that the evidentiary burden applies equally to s. 97 protection. The
Court held in Sellan that an applicant has the onus to demonstrate that
there is independent, credible evidence to support his claim. And Prophete
v Canada (Citizenship and Immigration), 2009 FCA 31 at para 7 held that the RPD must conduct an individualized assessment
of the objective documentary evidence in order to render
a positive disposition of the claim.
[15]
It follows that, when an applicant does not meet the onus of providing independent, credible evidence to support a claim
-- including where the documentary evidence does not lend itself to an
individualized assessment -- there is no prospect of success. That
was the crux of the RPD’s conclusion in this case, namely that the Applicant’s
evidence did not support a positive disposition of the claim. Simply put, there
was insufficient evidence to conduct a meaningful s. 97 analysis.
[16]
In reviewing a tribunal decision, it is well established that the
Court must consider the entirety of the record – both in terms of the subjective
and objective fear, and the evidence supporting both (Aria v Canada
(Citizenship and Immigration), 2013 FC 324 at para 27).
[17]
Here, the RPD reviewed the Applicant’s testimony
regarding risks upon return and once again found that the Applicant’s answers
(on a subjective basis) completely lacked credibility.
[18]
Without any objective documentary evidence allowing the RPD to
establish personalized risk (based on Kurdish Alevi identity), there is no
prospect of success under a s. 97 analysis. That is why I come to the
conclusion that there was thus no need to engage in a risk analysis in these particular
circumstances.
[19]
As a result of the totality of the findings, the
RPD reached a decisive conclusion on credibility, one which I find to be
reasonable, and one that was not contested in review – outside of a brief
exchange during the hearing raised by counsel as to whether the Applicant knew
people who had been killed or if he himself feared that he could be killed.
That specific exchange represented just one of a multitude of negative
credibility findings. While another decision-maker could have interpreted the
impugned exchange a different way, I find the RPD’s interpretation was reasonable.
[20]
Even if I were to take the view that the RPD
misconstrued the brief exchange in that isolated part of the testimony, the Court
is not to microscopically examine every aspect of the RPD’s reasons in a
treasure-hunt for errors (Communications, Energy and Paperworkers Union of
Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54).
By extension, the many remaining credibility findings still tip the balance
convincingly and incontrovertibly in the other direction – that the Decision
still fell well within the range of outcomes open to it, and was clearly
defensible based on the facts and under the law.
[21]
I would be remiss in failing to acknowledge
counsel for the Applicant’s able efforts to advocate for his client, including
raising several cases which have been decided in favour of the claimant. However,
I find they differ from the case at hand. Two, in particular, merit comment.
[22]
First, in Ayilan v Canada (Citizenship and
Immigration), 2008 FC 1328, this Court found that a s. 97 analysis was
required, given (a) the Board’s finding that the applicant was or may have been
discriminated against, coupled with (b) the documentary evidence provided by
the applicant. Neither (a) nor (b) were present in this case. Here, however, the
RPD made an entirely reasonable finding that the Applicant had never been subject
to discrimination, given his lengthy work history, travel to and from Turkey,
and his son’s success at school, among other points raised. Of particular note
was that the Applicant also took his family to Switzerland on a vacation in
2013, without seeking refugee status.
[23]
Second, Paramanathalingam v Canada (Citizenship
and Immigration), 2017 FC 236 [Paramanathalingam] provides a helpful
overview of the current s. 97 law. In Paramanathalingam, the evidence
demonstrated that the applicant and some family members had - or were perceived
to have - ties to the Liberation Tigers of Tamil Eelam [LTTE]. The applicant’s
father had also been arrested for his ties to the LTTE. Both factors could have
objectively put the applicant at risk based on the accompanying documentary
evidence. Both the subjective and objective evidence on display in Paramanathalingam
were absent here. In addition, the RPD in Paramanathalingam unreasonably
found that because the applicant never established a s. 96 fear, he could not
succeed under a s. 97 analysis. That conclusion was wrong in law. But here, the
RPD did nothing of the sort, rejecting the claim because it did not believe the
entire story, and simply lacked an evidentiary basis on which to conduct a s.
97 analysis based on personal risk to the Applicant.
III.
Conclusion
[24]
Given the reasons provided above, the
application for judicial review is dismissed.
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