Docket: IMM-581-14
Citation:
2015 FC 618
Ottawa, Ontario, May 11, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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CELAL YENER
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72 (1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of the November 25, 2013 decision of the
Immigration and Refugee Board of Canada, Refugee Protection Division (RPD),
wherein the RPD determined that the applicant is neither a Convention refugee
nor a person in need of protection pursuant to section 96 and subsection 97(1)
of the IRPA.
II.
Facts
[2]
The applicant is a citizen of Turkey of Kurdish
ethnicity and of Alevi faith. He alleges that both Turkish nationalists and
Turkish police persecuted him due to his faith, his ethnicity, his political
positions, and his membership in a particular social group (his family and the
Kurdish Alevi community). The applicant alleges that his family are well-known
Kurdish and Alevi leftists. In 2005, the applicant’s brother, a leftist
reporter, came to Canada and was found to be a Convention refugee. Also, the
applicant’s father and his family left their country for England where they
were found to be Convention refugees.
[3]
Based on the applicant’s allegations, the facts
are as follows.
[4]
From 1993 to 2011, the applicant has been
involved as a leftist political activist with different organizations in
Turkey. During that period, several of his activist comrades were detained,
beaten, and tortured. One of them was even shot at.
[5]
In March 1995, a group of armed men fired their
guns at three cafés known for being frequented by members of the Kurdish Alevi
community. Following this attack, the applicant participated in a protest where
the police fired on the crowd, killing 17 protesters and injuring others. As a
result of this event, the applicant reasoned that as a leftist and a member of
the Kurdish Alevi community he could be persecuted no matter where he was in
Turkey.
[6]
In May 2003, the applicant participated in a
leftist political gathering. After the meeting, when the activists were headed
home, the police attacked the group with sticks after slogans were shouted. The
applicant was arrested and brought to the police station. During his detention,
the applicant could hear other people screaming while they were tortured. The
applicant was finally brought to an interrogation room where he was asked why
he had shouted slogans. When he denied shouting slogans he was beaten. The
applicant was released without charges the day after.
[7]
In March 2009, the applicant participated in Newroz
celebrations (the Iranian New Year, celebrated by Kurds). After the event, the
applicant was arrested and taken into custody by three plainclothes police
officers due to the fact that he was wearing a scarf with the Kurdish national
colours. While the applicant was in the police car, the police officers punched
him in the stomach and crushed his toe. One of the police officers accused him
of being a terrorist separatist due to the scarf he was wearing, and his
Kurdish ethnicity. At the detention center the applicant was questioned,
beaten, tortured with electric shocks on sensitive parts of his body, and
subjected to falaka (foot whipping) before being forced to walk through
salted water. The police officers repeated the same treatment four times over
two days. The applicant’s life was also threatened during his detention.
Finally, after the two days of detention, the applicant was released without
charges.
[8]
About three days later, a plainclothes police
officer passed by the applicant’s workplace and told him that “it was not finished” and that they “will be always on [his] neck,” and that one day he
would be killed.
[9]
In December 2011, the applicant and other
activists gathered at Taksim Square to commemorate the Maras massacre in 1978 during
which more than a hundred Alevi were murdered. After telling the protesters to
disperse, the police attacked them with tear gas. The applicant tried to
escape, but he was arrested by the police along with other protesters. The
applicant was detained, beaten, and threatened with death because he had
participated in too many protests. The police also insulted his beliefs by
implying that Alevis engage in incestuous relations. For a third time, the
applicant was released without charges.
[10]
After his release, the applicant received a
threatening phone call. The anonymous caller told him that he was “finished” and that he would be killed.
[11]
The applicant obtained a passport in November
2011, and sold his business at the end of December 2011. He lived alternately
in Istanbul and Iskenderun to avoid extremist nationalists and the police while
awaiting a visa for the United States. The applicant applied for a U.S. visa
because he thought that it would be easier to obtain than a Canadian visa. Once
in the United States, the applicant went to Canada and claimed refugee protection
on February 9, 2012.
III.
Decision
[12]
The RPD found that the determinative issue was
the applicant’s lack of credibility. The main adverse credibility findings by
the RPD can be divided into the following five categories:
- The failure of
the applicant at the time of his entry into Canada to mention the
mistreatment he now alleges (the point-of-entry (POE) notes refer instead
to the treatment of Kurds and Alevis generally).
- The failure of
the applicant to mention in his Personal Information Form (PIF) the
smuggler he now alleges assisted with his departure from Turkey;
- The ease with
which the applicant (i) was released from custody; (ii) obtained a Turkish
passport; and (iii) left Turkey using his passport;
- The applicant’s
delay in leaving Turkey even after repeated mistreatment at the hands of
Turkish authorities; and
- The absence of
certain corroborating documents, including medical evidence of the
beatings he alleges.
[13]
A number of the applicant’s allegations appear
to have been considered by the RPD to be later embellishments to the
applicant’s refugee claim. These include:
- An attempt to
retain a smuggler in 2009 to obtain travel documents to leave Turkey (this
attempt allegedly failed because the smuggler disappeared with the
applicant’s money);
- The use of a
smuggler in 2011 (as mentioned above) to obtain his United States visa;
- A move by the
applicant’s wife and children in August 2013 due to police harassment; and
- An attack on the
applicant’s eldest son at university by Turkish nationalists in September
2013, as well as the psychological effect of that event on the applicant
which prompted a postponement of the applicant’s RPD hearing.
IV.
Issue
[14]
This matter raises the following issue:
- Did the RPD err
in assessing the credibility of the applicant?
V.
Analysis
A.
Standard of review
[15]
Findings of credibility are the heartland of the
RPD’s discretion on issues of fact: Giron v Canada (Minister of Employment
and Immigration) (1992), 143 NR 238 at 239 (FCA). Hence, it is trite law
that the standard of reasonableness applies to adverse credibility findings: Alvizuris
v Canada (Citizenship and Immigration), 2015 FC 351 at para 4; AB v
Canada (Citizenship and Immigration), 2014 FC 899 at para 21.
B.
The Applicant’s credibility
[16]
This analysis considers each of the RPD’s
above-listed credibility conclusions in turn, and then deals with the apparent
embellishments.
(1)
Failure to mention mistreatment at POE
[17]
In my view, it was reasonable for the RPD to
draw a negative inference from the failure of the applicant to mention, at the
time of his entry into Canada, the mistreatment he now alleges.
[18]
The applicant argues that it was inappropriate
to draw any sort of conclusion from this failure. The applicant argues that,
before reaching such a conclusion concerning credibility, the RPD should have
asked the applicant to explain the omission. I am not convinced that this is an
inconsistency of the type that required the RPD to question the applicant about
it. This is not a case like Kumara v Canada (Citizenship and Immigration),
2010 FC 1172 [Kumara], in which the decision turns solely on that
inconsistency. As argued by the respondent, the RPD asked many questions of the
applicant and was not lying in the weeds, as alluded to in Kumara at
para 3.
[19]
I am satisfied that the RPD’s conclusion on this
point may stand.
(2)
Failure to mention use of smuggler in PIF
[20]
The RPD was reasonable to draw a negative
inference from the failure of the applicant to mention his use of a smuggler in
his PIF. The applicant was also quite vague about what the smuggler did for him
and the RPD was also reasonable to be concerned about this.
[21]
The applicant argues that this issue is
peripheral to the applicant’s claim in that it does not directly concern the
alleged persecution and mistreatment cited by the applicant, or the ease of his
departure from Turkey. However, this argument goes to the weight to be given to
the evidence, not its reasonableness. I am not prepared to interfere with the
RPD’s decision in this respect.
(3)
Ease of release from detention, obtaining
passport, and leaving Turkey
[22]
The RPD apparently drew a negative inference
from the fact that the applicant did not describe any particular difficulties in
getting released from detention, obtaining a passport, or using his passport to
leave Turkey.
[23]
The National Document Package materials cited by
the RPD relate to people who are being sought by the authorities. They do not
readily apply to a person like the applicant who was detained but then released
without charge. Even if the applicant was under surveillance, the applicant
does not allege, or even suggest, that the authorities were seeking to arrest
him or to prevent his departure from Turkey.
[24]
In view of the facts in evidence, I do not see
any inconsistency resulting from the ease of the applicant's release from
detention, obtaining a passport, or leaving Turkey. It appears to me that the
applicant was no more than a minor irritant to authorities, who was detained
when he acted in ways that were particularly irritating to those authorities,
such as when he participated in demonstrations. The authorities were apparently
unable to identify any crime that the applicant had committed, so they were
obliged to release him after each detention. There is no suggestion that they
even wanted to prevent him from leaving Turkey. There is no pending criminal
charge or arrest warrant that would interfere with the applicant getting a
passport or leaving Turkey.
[25]
Therefore, it does not seem reasonable to
conclude that there is any lack of credibility based on the authorities’ low
level of interest in the applicant. In light of the preceding paragraph,
however, it is reasonable to ask whether the authorities' low level of interest
indicates that the applicant was not at risk of persecution and not in need of
protection. The RPD does find that, if the applicant had been of interest to
the authorities in Turkey, he would have had difficulty obtaining his passport
or leaving Turkey.
[26]
To the extent that the applicant’s allegations
of mistreatment while in detention are believed, the applicant would indeed
appear to be at risk of further such mistreatment if he were returned to
Turkey. It follows then that the reasonableness of the RPD’s conclusions in
this category of credibility findings depends on whether the applicant’s
allegations of mistreatment are credible. This is discussed below in the
section concerning the absence of corroborating documents.
(4)
Delay in leaving Turkey
[27]
There are points for and against the applicant
on the issue of his delay in leaving Turkey. The RPD drew an inference adverse
to the applicant from the fact that he did not leave Turkey in 2009 after he
was allegedly beaten and tortured. The RPD did not accept the applicant’s
explanation that he decided to stay because he thought the situation in Turkey
would improve.
[28]
In favour of the applicant, the statement in
para 28 of the RPD’s decision that the applicant was “unable
to explain why he thought things would improve” fails to acknowledge the
applicant’s explanation that government reforms had been introduced that made
him believe the situation would improve. The existence of those government
programs is corroborated in the documentation in evidence.
[29]
However, in favour of the respondent, the
applicant’s statement that he tried to use a smuggler back in 2009 (though the
smuggler allegedly disappeared with his money), suggests that he did want to
leave then and did not make a decision to stay in Turkey. This seems to be an
inconsistency that undermines the applicant’s explanation for delaying his
departure, and permits the RPD to draw an adverse inference.
[30]
On balance, I am not prepared to find that this
aspect of the RPD’s decision is unreasonable.
(5)
Absence of corroborating documents
[31]
The RPD cites at least three issues on which it
expected to see corroborative documents and drew a negative inference from
their absence:
- The allegation
that the applicant’s wife and son moved in August 2013, because of police
harassment;
- The allegation
that the applicant's eldest son was attacked in September 2013; and
- Evidence of
medical treatment following the alleged mistreatments of the applicant in
2003, 2009, and 2011.
[32]
In my view, the inference is clearly reasonable
on the first two points. These events are important to the applicant’s claim of
persecution, but there is no documentation to corroborate that they occurred.
Without corroboration, the applicant’s allegations on these two issues appear
to be examples of embellishment by the applicant.
[33]
With regard to the absence of evidence of
medical treatment, the RPD takes note of the applicant's statement that he did
not get medical treatment. This explains the absence of any medical report.
However, it begs the question whether the applicant’s injuries were as severe
as he alleges. The applicant explained that he did require medical treatment,
but he was afraid to seek it. It is not clear that the RPD considered this
explanation. The RPD did not indicate that it disbelieved the explanation. On
the other hand, the applicant gave no indication as to why he would have been
afraid to seek medical treatment.
[34]
I am not prepared to find that the RPD’s
reasoning surrounding the absence of medical treatment was unreasonable. Given
the number and severity of the beatings alleged by the applicant, a negative
inference was reasonable.
[35]
Moreover, in view of the RPD’s negative
inference concerning the applicant’s alleged mistreatments during his
detentions, and further to the discussion above concerning the ease with which
the applicant gained his release from detention, it follows that the applicant
does not appear to be at risk of any further such mistreatment if he were
returned to Turkey.
(6)
Embellishments
[36]
As discussed above, the possible embellishments
in this case are from (i) the unsuccessful attempt to retain a smuggler to
obtain travel documents in 2009; (ii) the use of a smuggler in 2011, to obtain
a United States visa; (iii) the move by the applicant’s wife and children in
August 2013, due to police harassment; and (iv) the attack on the applicant’s
eldest son.
[37]
Each of these allegations can reasonably be seen
as an embellishment. These are all allegations that were not included in the
applicant’s PIF. Without using the word “embellishment”
the RPD comments in respect of each of these allegations that they are not
credible.
[38]
A follow-up question is what sort of inference
can be drawn from finding that these are embellishments. Is the RPD limited to
simply disregarding the embellishments themselves, or can the RPD find that
these embellishments negatively affect the credibility of other allegations
made by the applicant? Though it is clear that the RPD is obliged to look past
the embellishments and consider the remaining evidence (Attakora v Canada
(Minister of Employment and Immigration) (1989), 99 NR 168 (FCA); Supiramaniam
v Canada (Citizenship and Immigration), 2007 FC 287 at para 5), I have not
seen any authority that prevents the RPD from concluding that embellishments
affect the credibility of other allegations.
VI.
Conclusions
[39]
I conclude that the present application should be
dismissed and the RPD’s decision should stand.
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