Docket: IMM-5756-13
Citation:
2014 FC 696
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 15, 2014
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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KALENDER TOPRAK
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application under section 72(1) of
the Immigration and Refugee Protection Act (IRPA) for judicial
review of a decision dated July 16, 2013, by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (IRB) in which the member
rejected the application for protection submitted by the applicant,
Kalender Toprak.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
I.
Factual background
[3]
The applicant, Kalender Toprak, is a
Turkish citizen, and he alleges that he fears the nationalists and the Turkish
police because of his Kurdish ethnic origin and his Alevi religion.
[4]
As a result of his uncle’s political involvement
in the 1978 events in Kahramanmaras that affected his entire family, the
applicant’s father changed his surname in 1980 from Topal to Toprak. In 1994, the
applicant’s family moved from the village of Elbistan to Hatay, Iskenderun. They transferred all the family records to Hatay so that they no longer had
links to Elbistan given that the village is associated with Alevi Kurds.
[5]
In 2003, the applicant moved to Izmir, in
western Turkey, which is recognized as one of the most liberal cities in the
country.
[6]
In 2007, in Izmir, during the celebration of Newroz,
the Kurdish New Year, the applicant was arrested in a crowd of 600 to 700
people, detained, threatened and released the next day. This happened when the
demonstrators refused to obey the police who were ordering them not to raise
the banners and placards. The applicant explained his arrest by saying: [translation] “I am
a Kurd and I was there … the police don’t choose people, they make arrests indiscriminately.”
He was threatened but not charged.
[7]
In November 2009, he was again arrested for a day
when he was part of a group of 50 people accompanying members of parliament who
were participating in a Kurdish rally of the Democratic Society Party (DTP), now
the Peace and Democracy Party (BDP), a Kurdish political party. A group of
nationalists attacked them, and the police intervened to defuse the situation. The
applicant says he was beaten at the time of his arrest and again at the police
station. He was threatened with [translation]
“a mysterious death” if he participated in such events in the future. He was
detained for a day.
[8]
In August 2011, during the month of Ramadan, he
was attacked by a group of Islamists at a rally in Izmir for the feast of “Ashure”.
He claims that the police did nothing and did not take his complaint.
[9]
On July 2, 2012, at a demonstration
commemorating the massacre of Alevi intellectuals burned in a hotel in the city
of Sivas in 1993, the applicant was taken in a confrontation with the police in
Sivas, who refused to allow the crowd to go to the hotel where the events
commemorating the massacre were taking place. Since he was among the demonstrators
refusing to obey the police, when the police wanted to disperse the crowd, he
was beaten, arrested and detained. The police threatened him, saying that he
could disappear or be burned.
[10]
Following this last incident, the applicant made
the decision to leave Turkey, and he departed in February 2013 and came to Canada where he claimed refugee protection.
II.
Impugned decision
[11]
The RPD, despite doubts about the applicant’s
credibility in terms of his Alevi and Kurdish identity, gave him the benefit of
the doubt with respect to his allegations concerning his ethnicity and
religion.
[12]
The RPD also noted that the applicant recounted
three events where he was arrested and again expressed doubts about the
applicant’s credibility regarding his vague testimony with long hesitations but
again gave him the benefit of the doubt.
[13]
The RPD also noted that the documentary evidence
in the record states that the Turkish government generally permits the free
exercise of religion, as indicated in a United Kingdom Home Office report in
2010. It noted the problems suffered by Alevis, who are discriminated against
although their situation has improved over the years. Members of Kurdish
political parties are regularly detained for short periods and are sometimes
victims of harassment as members of an illegal society.
[14]
The documentary evidence also shows that Kurds
who publicly or politically affirm their Kurdish identity or promote the use of
the Kurdish language in the public domain risk censure, harassment and
prosecution. The RPD cited a 2012 report from the United States Department of
State stating that some celebrations were banned or postponed for arbitrary
reasons, and violence was noted:
The government harassed and prosecuted persons
sympathetic to some religious, political and Kurdish nationalist or cultural
viewpoints.
…
Other significant human rights problems during
the year include: Security forces committed unlawful killings. Authorities
obstructed demonstrations. Security forces allegedly used excessive force
during sometimes violent protests related to Kurdish issues, students’ rights
and labour in opposition activities. The government obstructed the activities
of human rights organizations, particularly in the southeast.
Similar comments were made about the
situation in 2009.
[15]
After assessing all the evidence, the RPD concluded
that Alevi Kurds are not persecuted generally but appear to be discriminated
against and, in some cases, persecuted. With respect to the applicant personally,
the RPD found that it was not apparent from his testimony or the evidence that
he had a well‑founded prospective fear of persecution and therefore would
be persecuted if returned to Turkey.
[16]
The RPD based this conclusion on the behaviour
of the police towards the applicant. He was arrested randomly at demonstrations
without being sought by the police because of his identity. Moreover, the
police never pursued the applicant. He was released after each detention,
obtained a passport and was able to leave Turkey.
[17]
In addition, the RPD noted that the applicant did
not fit the profile of a political or Kurdish activist and was not a member of
any political party. He was arrested randomly when participating in various
demonstrations by being part of a group of demonstrators who were disobeying
the police; there was no connection between these events. The documentary
evidence shows that it is particularly Kurds with a public and politicized
profile who are harassed, pursued or targeted by the police.
[18]
Moreover, the applicant does not claim that he
had any problems regarding employment, and he worked as a mechanic in Turkey until 2013. He acquired an education and also does not allege housing problems. He
remained at the same place in Turkey from January 2003 to his departure for Canada.
[19]
At the same time, the member concluded that the
incidents the applicant experienced were random. He would not face a reasonable
fear of persecution for his real or imputed political opinion, ethnicity or
religion if returned to Turkey.
III.
Issues
[20]
The applicant alleges that the issues are as
follows:
1. The RPD erred in fact and in law by failing
to assess all the evidence regarding the situation in Turkey presented by the applicant as well as by the National Documentation Package;
2. The member erred in law by not providing
detailed reasons in support of her decision;
3. The member erred in fact and in law by
finding that the applicant did not have a public and politicized profile and that
the incidents he experienced were random;
4. The member erred in fact in her findings about
how the events unfolded at the Newroz demonstrations over the last few years;
5. The member erred in fact and in law by
concluding that there was no well‑founded prospective fear of persecution
for this application.
[21]
In my view, the issue is as follows:
1.
Does the RPD’s decision contain an error of law
or is it unreasonable?
IV.
Standard of review
[22]
The parties agree that questions of fact and law
are reviewable on a reasonableness standard. However, the applicant alleges
that the member’s failure to provide reasons in support of her decision is reviewable
on a correctness standard.
[23]
I do not agree. The reasons go to the existence
of justification, transparency and intelligibility within the decision‑making
process and attract a reasonableness standard (Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190, 2008 SCC 9). The weighing, interpretation and assessment of
evidence are also reviewable on a standard of reasonableness (Yildiz v Canada (Citizenship and Immigration), 2013 FC 839 at paragraph 43; Oluwafemi v Canada (Minister of Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at
paragraph 38).
[24]
The issue of whether the treatment of the
applicant amounts to persecution is a question of mixed fact and law: see, for
example, Talman v Canada (Solicitor General), 93 FTR 266, [1995] FCJ No
41 (QL), at paragraph 15 (FCTD); Yurteri v Canada (Minister of Citizenship
and Immigration), 2008 FC 478, at paragraph 33, [2008] FCJ No 619; GebreHiwet
v Canada (Minister of Citizenship and Immigration), 2010 FC 482, at
paragraph 13, [2010] FCJ No 561; Nimaleswaran v Canada (Minister of
Citizenship and Immigration), 2005 FC 449, at paragraph 10, [2005] FCJ
No 559.
V.
Analysis
[25]
It is clear from the issues raised by the applicant
that he is challenging the RPD’s assessment of the evidence. This task falls
within its highly discretionary power. Accordingly, its decision is largely
free from the Court’s intervention as long as there was sufficient evidence
before the RPD for it to find as it did.
[26]
First, with respect to the RPD’s conclusion that
the conduct of the police towards the applicant at the time of his arrests and
following his detentions does not show that he was targeted or persecuted, I
find it to be reasonable and supported by the evidence of the applicant
himself. The applicant admits that he was arrested randomly three times in five
years at the demonstrations in question and that he was not targeted because of
his identity. It was to be expected that he would be arrested for refusing to
obey the police and that he could be beaten (without scars) during conflicts
with the police.
[27]
He was subsequently released by the police after
a brief detention without being charged or experiencing other problems or
harassment on the part of the authorities. He did not have any difficulties regarding
his right to education, his employment or his housing; he lived at the same
place in Turkey from January 2003 until his departure.
[28]
The death threats in 2012 were similar to those
made in 2009 and are of no consequence; they do not justify the applicant’s
departure based on a reasonable fear of persecution, especially since he
remained in Turkey for another year after his arrest without any incident
occurring before he left for Canada.
[29]
At the hearing, the applicant spent a great deal
of time trying to show that the RPD ignored the evidence of persecution
suffered by the Kurds, which was reported in the Responses to Information
Requests (RIR). After reviewing the documentation in the RIRs, I do not see a
real distinction in terms of the level of persecution suffered by some members
of the Kurdish community described in that documentation and that described in
the RPD’s decision, as cited above in the summary of facts.
[30]
In any event, the basis of the RPD’s decision is
that the applicant did not fit the profile of members of the community targeted
by the authorities and persecuted. Although the applicant disputes this
finding, there is substantial evidence to support it including the fact that the
applicant, despite having participated in political demonstrations that
resulted in his arrest and detention, did not face sufficient serious and
systematic consequences to constitute persecution within the meaning of the IRPA.
[31]
After a comprehensive review of the decision and
the record, I find that this conclusion was not unreasonable on the evidence
that was before the RPD.
[32]
Accordingly, the application for review is
dismissed. There is no serious question of general importance requiring certification.
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