Docket: IMM-920-11
Citation: 2011 FC 1361
Ottawa, Ontario, November 25, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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KEMALETTIN KAHYAOGLU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Kahyaoglu is a citizen of Turkey. He sought protection in Canada due to a fear
of persecution and harm by a group of Turkish criminals known as “the mafia”.
He had incurred a debt to them he could not repay. When he was assaulted by
these criminals, the Turkish police responded and arrested his assailants. Mr.
Kahyaoglu chose not to testify and to report a second incident.
[2]
The
Immigration
and Refugee Board, Refugee Protection Division, accepted that the events
described by Mr. Kahyaoglu had occurred but found that he had failed to rebut
the presumption of state protection: Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689.
[3]
Mr.
Kahyaoglu has brought this application for judicial review under section
72 of the Immigration and Refugee Protection Act, SC 2001, c 27. The
sole issue is whether the Board erred in its state protection finding.
[4]
The
issue is one of mixed fact and law. The applicable standard of review, as
determined by the jurisprudence, is reasonableness: Flores Zepeda v Canada
(Minister of Citizenship and Immigration), 2008 FC 491 at paras 8-10; Cobian
Flores v Canada (Minister of Citizenship and Immigration), 2010 FC 503
at para 21; Morales Lozada v Canada (Minister of Citizenship and Immigration),
2008 FC 397 at para 17; Holmik v Canada (Minister of Citizenship and
Immigration), 2008 FC 581 at para 9; and Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 at para 38).
[5]
The
Federal Court of Appeal addressed the burden of proof, standard of proof and
quality of the evidence necessary to rebut the presumption in Canada
(Minister of Citizenship and Immigration) v Flores Carrillo, 2008 FCA 94 [Carrillo].
The applicant bears both an evidentiary and legal burden; he must introduce
evidence of inadequate state protection and must convince the trier of fact
that the evidence adduced establishes that the state protection is inadequate on
a balance of probabilities. The evidence must be relevant, reliable and
convincing.
[6]
The
parties disagree on whether the applicant met the Carrillo requirements.
It is not for the Court to determine on judicial review if the requirements
were or were not met. The role of the Court is to determine whether the Board’s
decision was reasonable.
[7]
In reviewing
a decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 90 at para 47, and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 59.
[8]
The
applicant submits that the board erred in giving insufficient weight to his credible
oral testimony.
[9]
The
respondent contends, and I agree, that the Board considered the applicant’s
testimony, the documents submitted by the applicant, and the Board’s documentation
package respecting conditions in Turkey.
[10]
I do
not agree with the applicant that the Board preferred documentary evidence over
his testimony. Based on all of the evidence, the Board reasonably arrived at
the conclusion, on the balance of probabilities, that the applicant could
benefit from state protection in his home country. The decision falls within
the “range of possible, acceptable outcomes in respect of the facts and law” (Dunsmuir
at para 47).
[11]
The Board
did not ignore the applicant’s fear of the mafia. It acknowledged his fear and
the fact that there are corruption problems in Turkey. It was open to the Board
to conclude, as it did, that the applicant had not taken sufficient steps to
seek protection
noting that
the police did respond to his call, arrested the aggressors and came to his help
again when he was hit by a car (see Sanchez v Canada (Minister of Citizenship and
Immigration),
2008 FC 134 at paras 9-10).
[12]
The
applicant elected not to take advantage of the protection that he would have
been afforded had he testified in a court proceeding that could have sent his
aggressors to prison. It was reasonable on the evidence for the Board to find
that Turkey is a democratic state which is taking measures to deal with crime
and corruption within its territory. As stated in Hinzman v Canada (Minister
of Citizenship and Immigration), 2007 FCA 171 at paragraph 57, an applicant
from a democratic country
… is faced with the burden of proving
that he exhausted all the possible protections available to him and will be
exempted from his obligation to seek state protection only in the event of
exceptional circumstances.
[13]
Although
subjective fear can amount to an “exceptional circumstance” (Flores Zepeda v
Canada (Minister of Citizenship and Immigration), 2008 FC 491 at para 16),
the applicant failed to establish that he had grounds to believe that the
police would not provide him with protection. This is not a case such as Enriquez
Palacios v Canada (Minister of Citizenship and Immigration), 2010 FC 363,
where the police had given the claimant reason to fear them. Here there was no
evidence to that effect.
[14]
I
agree with the applicant that the Board cannot disbelieve a claimant’s credible testimony
on country conditions simply because there are no corroborating documents: Ahortor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 705 (TD) at para 46.
However, while
the Board must
consider all of the evidence before it, it is entitled to determine the weight
to be given to the evidence: Velinova v Canada (Minister of Citizenship and
Immigration), 2008 FC 268 at para 21; and Cosgun v Canada (Minister of
Citizenship and Immigration), 2010 FC 400 at para 54.
[15]
Here,
the Board believed the applicant’s testimony. But that testimony was not
sufficient to rebut the presumption. The Board adequately explained why in
accordance with Okyere-Akosah v Canada (Minister of Employment and
Immigration), [1992] FCJ No 411 (CA) at paragraph 5.
[16]
The
applicant did not provide clear and convincing confirmation of the state's
inability to protect. The Board considered all of the relevant evidence
including the applicant’s testimony. Its finding that state protection was
available is reasonable and the Board made no reviewable error in reaching that
conclusion.
[17]
No
questions were proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
questions are certified.
“Richard
G. Mosley”
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