Date: 20050207
Docket: IMM-1651-04
Citation: 2005 FC 191
Toronto, Ontario, February 7th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ABDULLAH NERGIZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns a Kurdish Muslim, about whom, the Refugee Protection Division ("RPD") made the following determination of fact:
Also, the claimant is not a conscientious objector and has simply left Turkey to evade the Turkish military draft. Therefore, if he returned to Turkey, he would likely be arrested and would be subject to the Turkish law as regard to those who evade the military draft.
(Tribunal Decision, p.19)
Given the evidence on the record, it is not contested that Turkish law would require the Applicant to serve in the military.
[2] In his Personal Information Form the Applicant made the following claim:
I am especially afraid of persecution as a devout Muslim if I am forced to serve in the military. There is no toleration of religious practice in the Turkish military.
(Applicant's Application, p. 35)
[3] On the record in the present Application, there is a body of evidence that Muslims in the Turkish military are restricted in practising their religious beliefs. Therefore, the questions squarely before the RPD were: on the evidence in the present case, do the restrictions identified, in of themselves, constitute persecution; and, correspondingly, would there be more than a mere possibility that the Applicant would suffer persecution on religious grounds were he to return to Turkey and be required to serve in the military.
[4] Rather than grappling with these difficult questions, and reaching answers, the RPD deflected the responsibility to the content of the record with the following statement:
The report goes on to indicate the possibility for conscripts to perform their ritual prayers is entirely dependent on the unit commander. If the panel was to accept that there were some restrictions on religious beliefs in the military, there is no reliable documentary evidence to indicate that these restrictions lead to persecution.
[Emphasis added]
(Tribunal Decision, p. 13)
[5] In my opinion, the RPD did not do what it was required to do by s. 96 of the Immigration and Refugee Protection Act ("IRPA"), and, as a result, I find that the RPD's decision is made in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
However, I direct that, on the redetermination, the RPD's obligation is to only answer the two questions presently left unanswered as noted above.
I further direct that the redetermination be on the existing record, but as supplemented by any additional evidence that either Counsel for the Applicant or Respondent consider necessary.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1651-04
STYLE OF CAUSE: ABDULLAH NERGIZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 7, 2005
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: FEBRUARY 7, 2005
APPEARANCES BY:
Mordechai Wasserman FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mordechai Wasserman
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Toronto, Ontario
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