Docket: IMM-53-11
Citation: 2011 FC 1137
Toronto, Ontario, October
5, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ERDAL AKAR
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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
[1]
The
applicant seeks to set aside a December 8, 2010 decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board)
which found that he was neither a Convention refugee nor a person in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). The determinative issue before
the Board was the applicant’s failure to establish the claim with credible and
trustworthy evidence. Despite the reasonableness of many of these findings, the
decision fails in one material respect and, in consequence the application is granted.
Facts
[2]
The
applicant is a citizen of Turkey. He claimed refugee protection pursuant to sections 96 and
97(1) of the IRPA on the basis of his identity as an Alevi Kurd. Being
Alevi distinguishes him from Muslims in Turkey, and being Kurdish distinguishes him from Turks
in Turkey. He claimed refugee
protection on the basis that his political activities in support of Alevis and
Kurds have led him to be persecuted by the Turkish police and others. Furthermore,
he claimed that allegations of his membership in Ergenekon, a Kemalist
organization, the alleged object of which to topple the incumbent government,
have been made against him. He claimed that while returning to Turkey from Azerbaijan where he was studying
at university, he was questioned by police about his Demokratik Toplum Partisi (DTP)
political activities. The applicant also claimed that his support for a political
candidate of the Cumhuriyet Halk Partisi (CHP) party and for being a member of
the Ataturku Thought Association (ADD) and, at one time, its youth leader, led
to police interest in him.
[3]
The
applicant said that he was attacked by Turkish nationals at the festival of
Newroz in Baku, Azerbaijan, following
which he was questioned by police upon re-entry into Turkey. He claimed that the
“pro-Islamic” Adalet Kalkinma Partisi (AKP) party stands in opposition to the
CHP party and that his support for the CHP party resulted in telephone death
threats from AKP fundamentalists. The applicant said that he was detained and
questioned about his political activities, and although he was released without
being charged, he was beaten by the police while in custody.
[4]
The
applicant submitted documents in corroboration of his claim; a letter from
Sevket Kose, the CHP party member he supported; his ADD membership card; a copy
of a letter sent by the Adiyaman Headman to the applicant’s father which
claimed that the applicant was wanted for questioning by the police (not the
warrant itself); a letter from Aziz Akar, the applicant’s brother who lives
elsewhere in Turkey, and a letter from the Toronto Kurdish Community and
Information Centre stating that the applicant visits the Kurdish Community and
Information Centre in Toronto.
[5]
The Board
accepted that the applicant was an Alevi Kurd but found that the determinative
issue in the claim was “the failure to establish the claim with credible and
trustworthy evidence. [Mr. Akar] has not established past persecution, or
political profile with credible evidence.” It thus rejected the claim.
Decision under review
[6]
The
Board’s decision is based in the jurisprudence and for the most part demonstrates
in its reasoning justification, transparency and intelligibility. With respect
to credibility, the Board found:
When
a claimant swears that certain facts are true, this creates a presumption that
they are indeed true, unless there is valid reason to doubt their veracity; and
the determination as to whether a claimant’s evidence is credible is made on a
balance of probabilities I find that the claimant did not provide sufficient
credible and trustworthy evidence to establish any political profile, and to
establish a well founded fear of persecution, if returned to Turkey today.
[7]
The Board
then analyzed most of the elements of the claim in an extensive manner, and
noted the applicant’s reavailment prior to coming to Canada, delay in advancing a Convention
claim and lack of participation in Alevi political activities in Canada. These findings of
fact are not challenged.
[8]
With
respect to subjective fear, the Board held that the questioning by police was
neither serious, threatening or systematic and did not reach the threshold
required by the United Nations’ Convention Relating to the Status of
Refugees, July 28, 1951, [1969] Can TS No 6 (the Convention):
By
definition, a Convention refugee is someone who has a well-founded fear of
persecution. Fear is, by its very nature, subjective, while the
well-foundedness of that fear is an objective matter. Both subjective and
objective components are required to meet the definition, and a lack of
evidence going to the subjective element of the claim is, in itself, sufficient
for the claim to fail. The claimant’s conduct of reavailment does not reflect a
genuine subjective fear, due to 2004 events.
[9]
The Board
also noted the absence of any documentation supporting the applicant’s political
activities in the DTP:
The
claimant stated that he was involved with the DTP. He had no membership card
confirming this. He was asked why he did not get a letter from any of his past
connections with the party, confirming his activities on behalf of the party,
or from DEHAP, where he was also associated; and the claimant indicated that he
could not get anything, and did not provide any evidence of any efforts made to
obtain corroborating evidence. He had no contacts. I find it unreasonable that
the claimant could not obtain any corroborating evidence of political profile,
and find that he exaggerated or embellished his involvement with these
political parties to bolster his claim. Where a claimant’s story has been found
to be implausible or otherwise lacking in credibility, a lack of documentary
corroboration, or a lack of effort to obtain the documentation, can be a valid
consideration for purposes of assessing credibility.
[10]
Finally,
there was no evidence of any warrant for the arrest of the applicant, and he
passed through both Turkish and Canadian border controls without incident. On
the whole, the applicant did not marshal credible and trustworthy evidence in
the eyes of the Board.
[11]
However,
the applicant argues that the overarching error made by the Board is that it
failed to address the principal basis of his claim, which was that he feared
persecution on the ground of what has been described as the Ergenekon investigation,
a government investigation the ostensible purpose of which is to ferret out a
conspiracy to topple the government but which the applicant describes as a
campaign by the (Islamist) government to persecute secularists. This was
central to the claim for status, hence the member was required to assess his
profile in the light of the risk posed by the Ergenekon investigation. A
finding that a claimant did not have a political profile implicitly requires
that the question of perspective be addressed. The Board needed to situate its
conclusion that he had no profile in the context of the risk he faced. The
applicant may have been perceived to have been part of Ergenekon, on the basis
of his identity as an Alevi Kurd, regardless of his political profile. The
Board, having failed to allude to source of risk, namely that he was within the
scope of the Ergenekon on the basis of his identity, could not conclude that he
faced no risk from it.
[12]
The
application for judicial review is therefore granted. The matter is sent back
for redetermination by a differently constituted panel.
[13]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed and the
Court finds that none arises.
"Donald J. Rennie"
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