Tolu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 334

Date: 20020325

Docket: IMM-1587-01

Neutral citation: 2002 FCT 334

Ottawa, Ontario, Monday the 25^th day of March 2002

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

                                           HUSEYIN TOLU

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    Huseyin Tolu is a Turkish citizen who claims a well-founded fear of persecution in Turkey based on his nationality as a Kurd, his Alevi religion, and his political opinion. He brings this application for judicial review from the March 9, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that he is not a Convention refugee.

THE FACTS

[2]    The CRDD expressed no concern with respect to the credibility or trustworthiness of Mr. Tolu's evidence before it, which was as follows.

[3]    In 1988, Mr. Tolu's family moved to Istanbul from the village of Kantarma hoping to escape the pressure they had faced there as Alevi Kurds. In 1991, Mr. Tolu and his father were arrested by security agents who were looking for what was characterized as separatist propaganda. They were detained for two days, given very little food or drink, questioned at length, and beaten. Mr. Tolu saw his father subjected to electric shocks.

[4]    While in high school Mr. Tolu was beaten by Sunni students on several occasions. On one occasion in 1993 the police were called. Although Mr. Tolu was the victim he was arrested and detained. In 1994, Mr. Tolu and other Alevi Kurd students were attacked by Sunnis. Again the police were called and the Kurds were arrested, but the Sunnis were not. Mr. Tolu was detained for one week during which time he was beaten three or four times, deprived of food, questioned and then released.

[5]                 In 1994 and 1995, Sunni students attacked Mr. Tolu's wife and her other Alevi Kurdish friends. On both occasions she and her friends were arrested. On the first occasion, she was beaten and detained overnight with no food or water. On the second occasion, she was beaten, sexually molested and released after three days.

[6]                 During Mr. Tolu's compulsory military service from 1997 to 1999 he was treated in a discriminatory fashion. He and the other Alevi Kurds were given the worst duties. They were beaten if they did not observe Sunni rituals. In 1998, Mr. Tolu was beaten every day during the month of Ramadan.

[7]                 Mr. Tolu and his wife left Turkey on October 3, 1999 and arrived in Canada on October 4, 1999 claiming refugee status on arrival. Their hearing before the CRDD was held on December 11, 2000, and a negative decision was rendered in respect of each of their claims on March 9, 2001. Mrs. Tolu's application for leave and for judicial review was refused, but leave was granted to Mr. Tolu.

THE CRDD'S DECISION

[8]                 The CRDD accepted that Mr. Tolu is a Kurd who practices the Alevi faith, and that the documentary evidence shows that Alevi Kurds often face discriminatory practices, at times clearly persecutory, from the state and fellow Turks.

[9]                 When reviewing the evidence before it, the CRDD made no mention of any of the beatings described by Mr. Tolu. For example, when referring to the 1994 arrest the CRDD simply said "[t]he principal claimant testified that when the authorities realized that he had committed no crimes and that his only problem was being an Alevi Kurd they released him".

[10]            The CRDD found that after the 1994 arrest there was no credible evidence of either agents of the government or Sunni fundamentalists interacting with Mr. Tolu in a fashion that could be called persecution. The CRDD made no comment as to whether any of the conduct prior to that point had been persecutory.

[11]            With respect to Mr. Tolu's treatment in the military, no reference was made to the evidence of beatings and the CRDD concluded that Mr. Tolu was the object of discriminatory behaviour in the military, which the CRDD did not find to be persecutory.

[12]            The CRDD went on to write:

The principal claimant was asked why he thought nothing had happened to him during the five year period 1994 to 1999. He said he had sought to avoid confrontation, that he'd avoided problem areas. The principal claimant said that he was not politically involved or sophisticated. According to British Home Office Country Assessment: April 2000, three million Kurds live in the Istanbul conurbation. This document suggests that Kurds at risk there are those with a political profile or those suspected of connection or sympathy with the PKK. The panel finds that the principal claimant lacks a political profile. We further find that as of his release in 1994, the principal claimant was not viewed by agents of the Turkish government as a supporter of or sympathizer with the PKK. Accordingly we do not find that there is more than a mere possibility that the principal claimant would face persecution should he return to Turkey. [footnotes omitted]

[13]            In the result, the CRDD concluded that Mr. Tolu does not have a well-founded fear of persecution in Turkey based on either his nationality, religion, or political opinion.

THE ISSUES

[14]            Mr. Tolu raised two issues with respect to the CRDD's decision. Those issues were:

1.    Did the CRDD err in law in concluding that Mr. Tolu had not been subjected to persecution?

2.    Did the CRDD err in law by failing to consider whether cumulative harassment constituted persecution?

ANALYSIS

[15]            I begin by observing three general principles of law. First, the identification of persecution behind incidents of discrimination is a mixed question of fact and law. The Federal Court of Appeal has said that it is for the CRDD to draw the conclusion as to whether conduct constitutes persecution in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein. This Court is not to intervene in the conclusions of the CRDD unless they appear to be capricious or unreasonable. See: Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796 (F.C.A.).

[16]            Second, as to what constitutes persecution, the leading case is Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 where the Federal Court of Appeal at page 133 defined persecution in terms of to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently; to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship; a particular course or period of systematic infliction of punishment directed against those holding a particular belief; persistent injury or annoyance from any source.

[17]            Third, in cases where the evidence establishes a series of actions characterized to be discriminatory there is a requirement to consider the cumulative nature of that conduct. This requirement reflects the fact that prior incidents are capable of forming the foundation for present fear. See: Retnem v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 53 (F.C.A). This is also expressed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status in the following terms, at paragraph 53:

In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to a well-founded fear of persecution on "cumulative grounds".

[18]            In the present case, I accept the submission advanced on Mr. Tolu's behalf that the CRDD failed to consider whether the cumulative weight of the treatment he experienced could give rise to a well-founded fear of persecution. This analysis of the cumulative nature of persecution was particularly called for in light of the CRDD's conclusion that Alevi Kurds often face discriminatory practices, and in light of Mr. Tolu's evidence as follows:

RCO                          If you have been in Turkey for five years since your last detention and the police release you after they realize that you had no political profile, what is your fear?

MALE CLAIMANT                               First of all, if I was not caught and arrested from ‘94 to ‘99, I'd consider myself extremely lucky, but that's not an indication that I will not be arrested or detained after that. But living with the fear of I might be arrested, every single day, is equal to being arrested. Perhaps I was not being physically tortured, but while I was on the street, every single day, I was psychologically tortured for thinking that, "When, next, am I going to be detained?"

[19]            Throughout, the CRDD appears to have proceeded sequentially, through the chronology recounted by Mr. Tolu, without appreciating the totality or cumulative effect of the uncontradicted evidence about the treatment endured by Mr. Tolu, his wife, and his father.

[20]            In so proceeding, the CRDD committed a reviewable error.

[21]            I have considered the Minister's submission that the CRDD answered the only relevant question to be determined, which was whether there was a serious possibility that Mr. Tolu would be persecuted if returned to Turkey. However, I am not satisfied that the CRDD would have reached that conclusion had it properly considered the evidence before it.

[22]            In the result, the application for judicial review will be allowed and it is not necessary to deal with the alternate ground of error asserted by Mr. Tolu. Counsel posed no question for certification and no question is certified.

ORDER

[23]            IT IS HEREBY ORDERED THAT:

1.    The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated March 9, 2001 is set aside. The matter is to be remitted to a differently constituted panel for redetermination.

2.    No question is certified.

"Eleanor R. Dawson"

                                                                                                           Judge