Docket: IMM-7422-11
Citation: 2012 FC 500
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, May 1, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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ERSIN SEDAT KUCCUK
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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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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The panel must carefully consider the
documentary evidence if it wants to be able to properly identify the crux of a
claim that has both a subjective component evinced by the testimony and an objective
component reflected by the documentation adduced in evidence.
[2]
It is not enough to merely make reference to the
documentary evidence; one must ensure that a modicum of rigour has been
employed in the analysis of that evidence. In this case, the documentary
evidence cited by the panel contradicts the panel’s findings in no uncertain
terms.
II. Judicial
procedure
[3]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA), of a decision of the Refugee Protection Division (RPD) of the Immigration
and Refugee Board (IRB), dated October 3, 2011, in which it was determined that
the applicant was neither a Convention refugee under section 96 of the IRPA nor
a person in need of protection under section 97 of the IRPA.
III. Facts
[4]
The applicant, Ersin Sedat Kuccuk, is a
twenty-six-year-old citizen of Turkey. He is of Kurdish origin and practises the Alevi faith.
[5]
The applicant grew up in the village of Iskenderun in the province of Haytay, where he claims he was persecuted because of his Kurdish
ethnicity and his religion.
[6]
In 2006, the applicant was arrested in his
family’s store where he worked and was accused of having written a Kurdish
propaganda slogan on a wall. The applicant was detained for three days, during
which he alleges that he was repeatedly insulted, abused and tortured by the
authorities.
[7]
The police released the applicant, threatening
to keep a close eye on him.
[8]
In 2007, the applicant completed his mandatory
military service. During this period, he alleges that he was mistreated because
of his Kurdish ethnicity and because his family was considered to be a threat.
He claims that he was beaten about the face, suffering a broken nose as a
result, because his commanding officer found a CD of Kurdish music among his
personal effects.
[9]
In August 2009, the applicant participated in a
Kurdish demonstration during which he was arrested. He was detained for two
days and was subjected to an interrogation under torture because of his
ethnicity.
[10]
The applicant fled Turkey for Canada on January 13, 2010, using a U.S. visa that had been obtained by means of falsified documents. He
claimed refugee status on January 18, 2010.
IV. Decision under
review
[11]
The RPD found the applicant to be credible. It
determined that the applicant’s allegations were true. Nonetheless, the RPD
found that there was an internal flight alternative (IFA) in the city of Istanbul. The applicant had apparently
lived in this city before his departure and was not a member of a Kurdish
organization. Thus, the RPD was of the opinion that the applicant would not be
persecuted in Istanbul in light
of the documentary evidence showing that the government had taken steps to
protect the rights of the Kurdish minority.
[12]
The RPD noted that the applicant had not been
persecuted by local authorities in the village of Iskenderun and that it did not appear that
he was being sought after by the Turkish government. In fact, according to the RPD,
the use of a Turkish passport and the fact that the applicant had been released
without conditions supported this finding.
V. Issue
[13]
Is the RPD’s decision reasonable?
VI. Relevant
statutory provisions
[14]
The following provisions of the IRPA are
applicable in this case:
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Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership in
a particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
Person in need of protection
(2) A person
in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la
personne qui, craignant avec raison d’être persécutée du fait de sa race, de
sa religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de
personnes auxquelles est reconnu par règlement le besoin de protection.
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VI. Positions of
the parties
[15]
The applicant is essentially claiming that the RPD
ought to have given more weight to the testimonial evidence which showed the
problems endured by the applicant rather than using elements that supported its
finding. Thus, he claims that the IFA determination is contradicted by
documentary evidence which purportedly shows that the police are not capable of
protecting the Kurdish population.
[16]
The respondent argues that the RPD correctly
applied the IFA criteria and that the applicant had not demonstrated that he
was targeted by the Turkish government. In addition, the respondent argues that
the documentary evidence adduced by the applicant does not support his allegations.
VIII. Analysis
[17]
The IFA finding is based on the RPD’s assessment
of the facts and, in this perspective, calls for some degree of deference.
Accordingly, the applicable standard of review is reasonableness (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
[18]
In matters concerning IFAs, the Federal Court of
Appeal in Ranganathan v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA), explained the principle to be applied as
follows:
[14] We
read the decision of Linden J.A. for this Court as setting up a very high
threshold for the unreasonableness test. It requires nothing less that the
existence of conditions which would jeopardize the life and safety of a
claimant in travelling or temporarily relocating to a safe area. In addition,
it requires actual and concrete evidence of such conditions. The absence of
relatives in a safe place, whether taken alone or in conjunction with other
factors, can only amount to such condition if it meets that threshold, that is
to say if it establishes that, as a result, a claimant’s life or safety would
be jeopardized. This is in sharp contrast with undue hardship resulting from
loss of employment, loss of status, reduction in quality of life, loss of
aspirations, loss of beloved ones and frustration of one’s wishes and
expectations. [Emphasis added.]
[19]
The RPD’s position with respect to the
applicant’s credibility is very clear:
[11] For
the purposes of this decision, the panel will accept that the allegations of
the claimant are true.
[20]
In the case at bar, the RPD’s analysis of the
documentary evidence is problematic. In fact, the documentary evidence cited by
the RPD contradicts its assertion to the effect that the Turkish government has
gone to great lengths to improve the situation of the Kurdish minority, such as
having amended laws (RPD decision at para 13). Thus, the paragraphs of Tab 2.8
of the National Documentation Package on Turkey, dated June 29, 2011, entitled
“Country of Origin Information Report, August 2010”, cited by the RPD are the
following:
KURDS
19.04 The Minority Rights Group International, Turkey Minorities,
undated, accessed on 9 July 2010 noted that:
“Kurds are the
largest ethnic and linguistic minority in Turkey. The estimated numbers claimed by various sources range from 10 to
23 per cent of the population. According to the 1965 national census, those who
declared Kurdish as their mother tongue or second language constituted around
7.5 per cent of the population. However ... [given restrictions on the use of
Kurdish] it is possible that this figure was under-inclusive at the time.
“Kurds speak Kurdish,
which is divided into Kurmanci, Zaza and other dialects. The majority are Sunni
Muslims, while a significant number are Alevis. Historically concentrated in
eastern and south-eastern region of the country, where they constitute the
overwhelming majority, large numbers have immigrated to urban areas in western Turkey.” [57f]
For background
information on the treatment of Kurdish minorities and the escalation of
violence from Kurdish insurgents, notably with the emergence of the
Kurdistan Workers Party or PKK in 1982, refer to the History section – The
Kurdish Issue
19.05 The US State Department Country Report on Human Rights
Practices 2009, Turkey (USSD Report 2009), published on 11 March 2010,
noted that in considering the impact of ethnicity in relation to human rights
violations, and specifically cases of state torture and mistreatment, an
October 2008 report from the Societal and Legal Research Foundation (TOHAV) reported that as well as an increase in torture cases during 2008,
there was in addition a higher incidence of torture being conducted against
ethnic Kurds. The study comprised of 275 surveys
from “credible sources” of torture between 2006 and 2008. The findings of the
study showed that from the 275 individuals surveyed, 210 were found to be
ethnic Kurds. [5i] (Section 1c. Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment)
19.06 Information on the treatment of Kurds should be read in
conjunction with various sections listed in the Contents. In addition specific
reference to treatment of Kurds can be found under the following sections or
subsections:
• Security
Forces – Human rights violations committed by the security forces
• Judiciary
– Access to Justice
• Political Affiliation – Political demonstrations and
Kurdish opposition groups
• Freedom
of Speech
• Human Rights institutions, organisations and activists – Treatment
of human rights activists
• Children
– Detention of Children
• Internally
Displaced People (IDPs)
19.07 On the subject of Kurdish rights, the Human Rights
Association (IHD) and Human Rights Foundation of Turkey (HRFT) in a report
entitled Evaluation of 2009 human rights violations report by IHD
and HRFT, noted: “Although the Kurdish question was formally accepted by
the state in 2009, as the government did not make
any legal or Constitutional regulations for democratic and peaceful solution of
Kurdish question armed conflict restarted as of 2010. In 2009, even government's statements regarding recognition of
Kurdish question and to solve it reduced the number of death in clashes.” [13d]
19.08 The information below covers several key Kurdish issues,
this should be read in conjunction with Recent developments -- Kurdish
issues: November 2009 – present
[Emphasis added.]
[21]
This document refers to the following sections,
which support the applicant’s allegations with regard to the torture he endured:
8.28 The USSD Report 2009 stated that “... members of the security
forces continued to torture, beat, and abuse persons. Human rights
organizations continued to report cases of torture and abuse in detention
centers and prisons during the year. They alleged that torture and abuse had
moved outside of detention centers and into more informal venues where it was
harder to document.” [5i] (Section 1c Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment)
8.29 The HRW World Report 2010 observed: “Police ill-treatment
occurs during arrest, outside places of official detention, and during
demonstrations, as well as in places of detention. In October Güney Tuna was
allegedly beaten by seven police officers in Istanbul, leaving him with a broken leg and serious head injury that were
not recorded in a routine custody medical report.” [9e] (p457) [Emphasis
added.]
[22]
It is clear from the evidence cited by the RPD
that the applicant would be at risk if he returned to Turkey. The RPD’s finding is not supported by the documentary evidence
cited by it.
[23]
Furthermore, in light of the fact that the RPD
believed the applicant’s allegations to be true, there is reason to question
why the RPD disregarded the applicant’s testimony that he had been under
surveillance by the police when it determined that he would be safe in Istanbul.
[24]
Upon reading the decision, it is obvious that
the RPD failed to draw a link between the applicant’s subjective circumstances
described in his testimony and the objective nature of the fear which was
supported by the documentary evidence cited by the RPD. What is even more
troubling is that the RPD cited documentary evidence which categorically
contradicts its findings.
IX. Conclusion
[25]
For all of the foregoing reasons, the RPD’s
decision is unreasonable. The applicant’s application for judicial review is
allowed and the matter is referred back for redetermination by a differently
constituted panel.
JUDGMENT
THE COURT
ORDERS that the application for judicial review
be allowed and the matter be referred back for redetermination by a differently
constituted panel. There is no question to certify.
“Michel M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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