Date: 20020508
Docket: IMM-3049-01
Neutral citation: 2002 FCT 521
Ottawa, Ontario, Wednesday, the 8th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
YILDIRAY OZEN
BAHAR OZEN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Yildiray Ozen and his wife, Bahar Ozen, bring this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated May 18, 2001 which determined that they are not Convention refugees.
THE FACTS
[2] Mr. and Mrs. Ozen are citizens of Turkey. Mr. Ozen is a Kurd, and his wife is ethnically Turkish. Mr. Ozen claims a well-founded fear of persecution from government authorities due to his race, political opinion, and membership in a particular social group, being young male Kurds. Mrs. Ozen bases her claim on family membership.
[3] The CRDD made no adverse findings of credibility with respect to the evidence of the applicants. Mr. Ozen's evidence, in summary, was as follows.
[4] In 1994, Mr. Ozen was arrested, beaten and falsely accused of robbery by police because he is a Kurd. In March of 1995, while he was driving his car, the police pulled Mr. Ozen over, and slapped and harassed him when they found out he was Kurdish. Mr. Ozen was forced to pay a bribe to stop the assaults. In December of 1996, Mr. Ozen was rear-ended while driving. At the police station the other driver was released with no charges while Mr. Ozen was accused of car theft and forced to pay a bribe. In December of 1998, Mr. Ozen was pulled over by police while driving his car, harassed, and beaten severely on the legs with a baton.
[5] In early 1999, Mr. Ozen's cousin Mesut Kose was shot in the leg when he intervened to help another Kurd who was being insulted. In March of 1999, Mr. Ozen and a group of friends were taken to the police station, where he and the only other Kurd in the group were arrested. Mr. Ozen was interrogated and released, while his Kurdish friend was detained for one month for talking back to the police. On that friend's release he told Mr. Ozen that he had been beaten and tortured while in detention. His friend said that electric shocks had been applied to his testicles, and that he had witnessed the torture of other Kurds.
[6] Mr. Ozen stated that by March of 1999 he had started to feel very concerned about his safety in Turkey, but that he had decided that he simply had to strive to avoid the police, and to avoid any arguments if he had any dealings with the police.
[7] Then, in November of 1999 another cousin was detained by the police, beaten and released the next day. In December of 1999, his cousin Ramazan was arrested, tortured and released three and a half weeks later. After his release Ramazan told Mr. Ozen that he had done nothing whatsoever to aggravate or provoke the police.
[8] Mrs. Ozen testified that as a result of her marriage she had experienced discrimination and racism from her family, the police, their landlord, and her work associates. During the December 1998 incident she feared for her husband's safety, having overheard the police beating and insulting him. She fears that she will be abused if she ever intervened to help her husband.
[9] Mr. and Mrs. Ozen decided to leave Turkey following the incidents involving Mr. Ozen's cousins in 1999, and they left on March 31, 2000.
THE DECISION OF THE CRDD
[10] The CRDD addressed two issues which it considered to be central to Mr. Ozen's claim:
1. Were the events which caused Mr. Ozen to flee Turkey discriminatory or persecutory?
2. Did Mr. Ozen, who had no political affiliation, have a well-founded fear of persecution from Turkish authorities if he returned to Turkey simply because he is a young Kurdish male?
[11] The CRDD correctly noted that Mr. Ozen had an uninterrupted employment record showing increasing authority and responsibility, with an above average salary. The CRDD observed that while the documentary evidence confirms that Kurds are often discriminated against in terms of education, training and government employment opportunities, it also indicates that Kurds are increasingly contributors to all employment sectors. Marriage between Kurds and Turkish nationals is a common occurrence. Mr. Ozen had both Kurdish and Turkish friends from different sectors of society.
[12] With respect to the police highway spot-checks, the CRDD noted that they are a standard procedure applied to all vehicles and occupants where, in the words of the CRDD:
It is only in the process of checking the car's occupants and contents that such identity may be uncovered. Moreover, it is plausible that if an individual Kurd argues and draws attention to his/her ethnicity it is more likely therefore that he/she would place himself/herself at risk to the individual or collective biases of the authorities. The claimant did not maintain his cultural Kurdish identity. He did not speak or write Kurdish, nor did he adhere to the cultural traditions and celebrations. In testimony, the claimant states that he took precautions to avoid placing himself at risk of being identified as a Kurd.
The panel finds that while the claimant may have suffered individual acts of discrimination because of his Kurdish ethnicity, these events are not persecutory under the Convention refugee definition.
[13] The CRDD noted that over a seven-year period Mr. Ozen was "harassed, taken into custody for questioning, beaten and issued warnings" and that on occasion he was required to pay a bribe to the police. Family members who were also young Kurdish males and had exhibited "angry, argumentative and provocative behaviors" were tortured, arrested, and detained at length.
[14] While the CRDD acknowledge the existence of significant human rights abuses against Kurds and other groups, it found that not all Kurds were equally affected, particularly non-dissidents and those willing to assimilate. Again, in the words of the CRDD:
The reality is that many Kurds who migrated to the larger cities of Istanbul, Izmir, Bursa, and Ankara have begun the process of assimilation, and are not anxious to assert their separate and independent identity. Many Kurds enjoy success in business, industry, and government, and view themselves as fully participating Turkish citizens. While acknowledging the cultural traditions of the Kurds and the need for freedom of opportunity for all Kurds, a significant number feel cultural expression and economic development can take place within the rubric of Turkish law and governance. In Turkey's April 1999 general election, the official Kurdish party HADEP did not capture the percentage of the Kurdish vote expected, supporting an interpretation that the Kurdish voters may not see independence as the answer to cultural and economic inequalities. Although the claimant established that he has a subjective fear of the authorities on the basis of their perception of the political opinion expressed by young Kurdish males, the panel finds the objective evidence lacking. The claimant does not have the personal profile that would be of special interest to the authorities. He poses no threat to the regime because of his expressed political or cultural opinion, or his Kurdishness. He has chosen to hide his Kurdishness. Although he has been involved in random incidents involving the security authorities, he has refrained from exacerbating the situation through extended arguments and other provocations. [footnote omitted]
[15] The CRDD concluded as follows:
The panel finds that the claimant's profile as a young male Kurd did not target him for special attention by the authorities. This does not rule out the possibility of the occurrence of random problems like the December 18th incident, but even that incident while deplorable conduct does not constitute persecution or that the claimant's fear of persecution is well-founded.
[16] With respect to Mrs. Ozen, the CRDD wrote:
The female claimant stated that she fears her husband will be tortured, basing this fear on his past treatment by authorities. She fears the authorities will mistreat her because she is married to him, and he is being targetted [sic] as a young Kurdish male. She also states that she would place herself at risk from the authorities if he were to be arrested. However, no credible evidence was introduced indicating she has experienced persistent discrimination or mistreatment by virtue of her marital status to the claimant. In addition, the documents indicate that marriage to a Kurdish citizen is not illegal, and is a relatively common practice. [footnote omitted]
THE ISSUES
[17] While the applicants raised a number of issues with respect to the decision of the CRDD, in my view two issues are determinative. They are:
1. Did the CRDD err in law by determining that Mr. Ozen faced only discrimination, not persecution?
2. Did the CRDD err in law by failing properly to consider the culminating incident leading to the applicants' flight from Turkey?
ANALYSIS
(i) Discrimination or Persecution?
[18] In Bobrik v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13 (T.D.) Justice Tremblay-Lamer considered the obligation of the CRDD to evaluate the cumulative effects of discriminatory actions. At paragraph 22 she wrote:
It is an error of law for the Board not to consider the cumulative nature of the persecution of a claimant. A trilogy of cases from the Court of Appeal indicates that it is improper to ignore evidence that in itself does not constitute persecution, but forms part of a pattern of persecution. MacGuigan J. clearly stated this principle in Retnem v. M.E.I. [(1991), 13 Imm. L.R. (2d) 317 (F.C.A.)]:
In other words, he [the applicant] made an argument that the cumulative acts of harassment by the authorities amounted to persecution in the sense of the refugee Convention. This is an argument which found favour with this court in Mirza Beglui v. M.E.I., A-538-89, decided January 28, 1991 [Please see [1991] F.C.J. No. 50]. I would also refer to the Reasons for Decision of Thurlow C.J. and Oyarzo v. M.E.I. [1982] 2 F.C. 779 at 781:
Since it is the foundation for a present fear that must be considered, such incidents in the past are part of the whole future and cannot be discarded entirely as the basis for a fear, even though what has happened since has left them in the background.
Hence, even though the claimant did not flee the country for some years after his two week detention and torture in 1984, that incident is still current as a basis for fear when linked with all of the smaller previous and subsequent harassment he endured. In my opinion, the Board's failure to deal with the cumulative nature of the persecution the applicant alleged is a patent error of law.
[19] In the present case, the uncontradicted testimony of Mr. Ozen described five incidents involving the police occurring between 1994 and 1999, which incidents included beatings and harassment. The CRDD discussed each of these incidents in its reasons, concluding that they amounted to "random problems" not amounting to persecution. The CRDD did not consider whether the cumulative effect of these incidents could amount to persecution.
[20] The Minister argued that the cumulative effect of these incidents did not reasonably amount to persecution. To the extent that the Minister relied upon Murugiah v. Canada (Minister of Employment in Immigration), [1993] F.C.J. No. 482 (T.D.) in support of this position, I find the decision of little assistance because there is no indication in the decision as to whether in that case the CRDD considered the cumulative effect of the two incidents before it.
[21] Moreover, in my respectful view this argument ignores the fact that the CRDD was obliged to consider the cumulative effect of these incidents. It is not for this Court to speculate as to the conclusion which the CRDD would have reached had it properly considered the cumulative effect of the incidents. Its failure to do so was a reviewable error.
(ii) The Culminating Incident
[22] The CRDD premised much of its conclusion on its belief that only those persons who are outspoken about their political or cultural opinion, or their "Kurdishness", are victims of persecution in Turkey. Because Mr. Ozen has, in the words of the CRDD, "chosen to hide his Kurdishness" and has "refrained from exacerbating the situation through extended arguments and other provocations", the CRDD concluded that, in spite of his past random problems, he would be of no special interest to the authorities.
[23] That finding is not supported by the evidence. First, Mr. Ozen's testimony was that he was singled out for treatment by the police because he is a Kurd. While he has learned not to be outspoken so as not to exacerbate the situation, the evidence is that he was targeted by the police for being a young male Kurd, not because he was outspoken. Second, the incident where his cousin Ramazan was detained at length and tortured occurred in the context of Ramazan not having provoked the police.
[24] Because this incident was central to Mr. Ozen's decision to flee Turkey, the CRDD's mischaracterization of the event and its failure to directly address it in its reasons is a further reviewable error.
CONCLUSION
[25] Having concluded that the CRDD erred in its consideration of Mr. Ozen's claim, I am also satisfied that its decision concerning Mrs. Ozen should also be set aside. Her stated fear and risk of persecution could not be properly appreciated in the absence of proper consideration of her husband's situation.
[26] For these reasons, the application for judicial review will be allowed.
[27] While the applicants requested that the CRDD should be directed to reconsider the well-foundedness of their claims based on their already accepted testimony, with the benefit of further documentary evidence, I consider it preferable that the matter be returned on the same record together with such other new evidence as the CRDD may wish to receive. Both parties should be permitted to make such further submissions as they deem advisable.
[28] Counsel posed no question for certification, and no question is certified.
ORDER
[29] 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 ("CRDD") dated May 18, 2001 is set aside. The matter is remitted for redetermination before a differently constituted panel on the same record together with such other new evidence as the CRDD may wish to receive. Both parties should be permitted to make such further submissions as they deem advisable.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3049-01
STYLE OF CAUSE: Yildiray Ozen and other v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 11, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: May 8, 2002
APPEARANCES:
Mr. Raoul BoulakiaFOR THE APPLICANTS
Mr. John LoncarFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Raoul BoulakiaFOR THE APPLICANTS
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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