Date: 20060504
Docket: IMM-5839-05
Citation: 2006 FC 560
Ottawa, Ontario, May 4, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
OZUNAL AYTAC
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.
(Paragraph 171, from the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees - HCR/IP/4/Eng/REV.1/Reedited, Geneva, January 1992, UNHCR 1979)
JUDICIAL PROCEDURE
[2] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), for judicial review of the decision of Refugee Protection Division of the Immigration and Refugee Board (Board) dated August 19, 2005 wherein the Board decided the Applicant was neither a Convention refugee nor a person in need of protection.
BACKGROUND
[3] The Applicant, Mr. Aytac Ozunal, is a citizen of Turkey. In order to postpone his military service for several years, he attended different universities in Turkey but he did not complete the programs in which he was registered.
[4] Mr. Ozunal lived in Turkey until August 2001 when he obtained a student visa and moved to the United States to pursue his education at Syracuse University in Engineering and Computer Science.
[5] While he was living in the US, Mr. Ozunal obtained a visitor visa and visited Canada in March 2002 but he did not claim refugee status while he was here. He returned to the US to continue his studies.
[6] In the spring of 2004, as his family became unable to pay his tuition fees, Mr. Ozunal could not register for the following university semester.
[7] In June 2004, Mr. Ozunal's family informed him that members of the military recruiting office were looking for him in relation to his military service. Then, in October 2004, Mr. Ozunal received a letter from the Turkish Consulate asking him to provide evidence of his student status. He was informed that he had three months to return to Turkey in order to perform his military service or he would risk losing his citizenship. He was also informed that since July 2004, he was considered a deserter by the military authorities.
[8] At that time, his student status in the USwas about to expire and as Mr. Ozunal did not want to remain in the country illegally, he made arrangements to come to Canada. He arrived in Canada with a visitor's visa in early January 2005. He claimed refugee status on February 4, 2005 on the basis of his membership in a particular social group and his political opinion.
DECISION UNDER REVIEW
[9] The Board concluded that Mr. Ozunal had not produced reliable and credible evidence to support a claim of persecution in Turkey. Neither did he establish that he would be exposed to a risk of torture, a risk to life or a risk of cruel and unusual treatment or punishment. Consequently the Board determined that he was neither a Convention refugee nor a person in need of protection.
[10] The Board found that although Mr. Ozunal clearly expressed his aversion to military service, his explanations as to why he refuses to perform his military service are not sufficient for him to be viewed as a conscientious objector.
[11] The Board also found that Mr. Ozunal did not provide any evidence to establish that the Turkish Military Conscription Act is inherently or by its eventual application persecutory and he did not link the application of that Act to any of the grounds of the Convention.
ISSUES
[12] The issues raised by the parties are:
1. Did the Board err in its determination of what constitutes a conscientious objector?
2. Does the punishment for military evasion invoke protection under sections 96 and 97 of IRPA?
ANALYSIS
Standard of review
[13] The determination of the risk of persecution is a question of fact. Because of the Board's expertise and specialization in this area, this Court must give the Board a high degree of deference to these types of decisions. The appropriate standard of review is therefore patently unreasonable. (Bakir v. Canada (Minister of Citizenship and Immigration), 2004 FC 70, [2004] F.C.J. No. 57 (QL), at paragraph 12; Hughey v. Canada(Minister of Citizenship and Immigration), 2006 FC 421, [2006] F.C.J. No. 522, at paragraph 186; Kayan v. Canada(Minister of Citizenship and Immigration), 2004 FC 1115, [2004] F.C.J. No. 1346, at paragraph 6.)
[14] The Board's assessment and conclusion with respect to the claim as a conscientious objector raises a question of mixed fact and law which indicates a standard of review of reasonableness simpliciter. (Bakir, above, at paragraph 13; Davarci v. Canada(Minister of Citizenship and Immigration), 2005 FC 116, [2005] F.C.J. No. 138, at paragraph 5.)
Did the Board err in its determination of what constitutes a conscientious objector?
[15] The Handbook on Procedures and Criteria for Determining Refugee Status, of the Office of the United Nations High Commissioner for Refugees, states at paragraphs 168-171 :
168. A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.
169. A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.
[16] The Board noted that while Mr. Ozunal had clearly expressed his aversion to military service, his explanations were not sufficient to lead to the conclusion that he is a conscientious objector. Refusal to serve because one bears aversion to combat or military action cannot in and of itself justify granting refugee status. (Marek Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290; Popov v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 90, [1994] F.C.J. No. 489 (QL).)
[17] As a conscientious objector, Mr. Ozunal was required to demonstrate not only the possession of such conviction but also the existence of a reasonable chance that he, if conscripted, would be required to participate in military activities considered illegitimate under existing international standards. (Atagun v. Canada(Minister of Citizenship and Immigration), 2005 FC 612, [2005] F.C.J. No. 820 (QL), at paragraph 7.)
[18] According to Mr. Ozunal's testimony, he became an objector while attending his secondary school education because, in 1997, a friend told him he witnessed atrocities during his military service in the South East of Turkey and because from 1999 to 2001, Mr. Ozunal's brother did his military service during which he was a victim and a witness of violent incidents.
[19] The Board noted from its analysis of the documentary evidence that Turkey is no longer engaged in military activities. Furthermore, the army does not deploy conscripts during the sporadic military activities but rather the regular army. Mr. Ozunal did not present any evidence demonstrating the contrary.
[20] The Board did not err in its determination of what constitutes a conscientious objector. Furthermore, based on the evidence, the Board's assessment that Mr. Ozunal is not a conscientious objector is reasonable.
Does the punishment for military evasion invoke protection under sections 96 and 97 of IRPA?
[21] Every male Turkish citizen is obliged under Military Act No. 1111 to carry out fifteen months of military service beginning January 1st of the year he becomes twenty years old. (UK Home Office April 2004 Turkey Country Report, at paragraph 5.113, Applicant's Record, tab 3, at page 28.)
[22] The Board found that the Turkish law is a law of general application and that Mr. Ozunal's claim had to be considered in the context of the decision of the Federal Court of Appeal in Zolfagharkani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (F.C.A.), [1993] F.C.J. No. 584 (QL).
[23] Compulsory military service alone cannot be a ground for Convention refugee status as it is not inherently persecutory. (Popov, above, at paragraph 6.)
[24] Furthermore, prosecution for failing to comply with a law of general application, such as a law requiring military service, does not generally constitute persecution. (Talman v. Canada (Solicitor General) (1995), 93 F.T.R. 266, [1995] F.C.J. No. 41 (QL); Perez de Gomez v. Canada (Minister of Citizenship and Immigration), 2005 FC 558, [2005] F.C.J. No. 681 (QL), at paragraph 11.)
[25] As was stated in Zolfagharkani, above, at paragraphs 18-22, the following principles apply when determining whether an ordinary law of general application is persecutory:
(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.
(2) But the neutrality of an ordinary law of general application, vis-a-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.
(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.
(See also Lishchenko v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 21 (QL), at paragraph 9.)
[26] The Board noted that by not responding to the call-up in relation of a law of general application and by leaving his country, Mr. Ozunal put himself in the situation where he will be imprisoned by the army on his return to Turkey.
[27] The Board examined the penalties for evasion of military service and how they are applied as set out in the Turkish Military Penal Code and other documentary evidence. The Board concluded as follows with regard to prosecution:
The panel has taken into account all the evidence concerning refusal to do military service in Turkey and has concluded that he will be treated in the same way as any person who has tried to evade military service and will be punished by a sentence not exceeding three years... (Reasons for decision, at page 6.)
[28] Contrary to Mr. Ozunal's submissions, the Board specifically assessed the possibility that he would be submitted to a sentence of up to three years imprisonment. Nevertheless, it concluded that the possibility of being imprisoned for up to three years is not an excessive or over-harsh sentence. This conclusion is consistent with the decision of this Court in Moskvitchev v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1744 (QL), at paragraph 7, in which a sentence for draft evasion of between six months and five years was not considered to be inhuman or extreme.
[29] The Board also examined whether prison conditions in Turkey amounted to a risk to life or cruel and unusual treatment or punishment. It found that the situation for prisoners in Turkey is improving and that the conditions of prisons meet minimum accepted international standards.
[30] The documentary evidence considered by the Board clearly indicated that Turkey not only had the willingness of improving prison conditions but took some measures and implemented inspection committees and a monitoring unit. (Reasons for decisions, at pages 6-7.)
[31] Accordingly, the Board concluded that if Mr. Ozunal were to be prosecuted for failing to perform his military service, it would not amount to persecution on a Convention ground. Similarly, the Board made no error in concluding that the punishments for evading military service in Turkey do not constitute a danger or a risk to life or a risk of cruel and unusual treatment or punishment.
[32] The Board's decision is consistent with Justice Michael Phelan's decision in Usta v. Canada (Minister of Citizenship and Immigration), 2004 FC 1525, [2004] F.C.J. No. 1832 (QL), which addressed whether Turkey's requirement to complete military service, even after serving prison time for refusing to serve, is contrary to section 97 of the Act. Justice Phelan concluded, at paragraph 16, that the requirement to meet one's citizenship duties, even after imprisonment, does not, in and of itself, rise to the level of torture or risk to life and is not inherently cruel.
[33] Justice Phelan held, in Usta, above, at paragraph 15, that: "...The fact that the law is more harsh than laws in Canada or that Turkish prisons are not of the same standard as Canadian prisons is not sufficient to establish this ground under section 97."
[34] Moreover, very recently, the Federal Court of Appeal in Ates v. Canada (Minister of Citizenship and Immigration), 2005 FCA 322, [2005] F.C.J. No. 1661 (QL), responded negatively to the following certified question concerning military service in Turkey:
In a country where military service is compulsory, and there is no alternative thereto, do repeated prosecutions and incarcerations of a conscientious objector for the offence of refusing to do his military service, constitute persecution based on a Convention refugee ground?
[35] It is well established that as a specialized tribunal, the Board is entitled to assess the documentary evidence and to draw conclusions from it. In Ganiyu-Giwa v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 506 (QL), at paragraph 2, Mr. Justice Wetson, citing Tawfik, held as follows:
With respect to the objective basis for determining the country conditions in Nigeria, it is clear that the Board did examine the situation and found that there was only a mere possibility of persecution. While there is evidence which appears to support that there was not a promising change in Nigeria, there is also evidence to support that there was only a mere possibility of persecution, should the applicant return. In Tawfik v. M.E.I., 93-A-311, August 23, 1993, MacKay J., noted that the Board often refers to documents that contain both supporting and non-supporting references. The Board may select, as part of its role and part of its expertise, the evidence that it prefers. That is what was done in the case.
CONCLUSION
[36] The evidence in this case supports the Board's conclusion that the sentences for evasion or refusal to perform military service were reasonable in the circumstances, were not excessive and that the penalties did not give rise to a danger of torture, risk to life or a risk of cruel and unusual treatment or punishment.
[37] As the Board's decision is based on the evidence before it and is not unreasonable, there is no reason for this Court to interfere. This application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed.
2. No serious question of general importance be certified.
"Michel M.J. Shore"
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