Docket: IMM-5781-13
Citation:
2015 FC 56
Ottawa, Ontario, January 16, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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EMIR SONMEZ
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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 and Relief Sought
[1]
The Refugee Protection Division [the RPD] of the
Immigration and Refugee Board of Canada refused Mr. Sonmez’s request for
protection under sections 96 and 97(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the Act]. He now applies for judicial review
pursuant to section 72(1) of the Act, asking the Court to set aside the
RPD’s decision and return the matter to the RPD for reconsideration.
II.
Background
[2]
Emir Sonmez [the Applicant] is a 50 year old citizen
of Turkey who arrived in Canada on January 3, 2012, and immediately sought
refugee protection. He claimed that he fears persecution for being Kurdish
Alevi and a leftist who has publicly supported pro-Kurdish parties and, as
such, that he has been discriminated against, detained and tortured for these
reasons on a number of occasions.
[3]
The Applicant’s claim was heard before the RPD
over four separate dates: September 13, 2012; October 18, 2012; November 30,
2012; and February 14, 2013. During the first three dates, the Applicant was
represented by an acquaintance from Toronto’s Turkish community, but each
hearing was eventually adjourned: in the first, because the Applicant had a
health emergency; in the second, because the Applicant could not understand the
interpreter; and in the third, because of a late start and delays in the
hearing. For the last hearing, the Applicant’s representative was unable to
attend, but the Applicant was prepared to proceed without his representative
and the hearing concluded that day.
III.
Decision under Review
[4]
The RPD rejected the Applicant’s claim in a
decision dated August 12, 2013.
[5]
The RPD first addressed some procedural issues
arising out of the adjourned hearings, and it was satisfied that: (1) any
interpretation issues aside from those resulting in the dismissal of an
interpreter during the second hearing were inconsequential; (2) although the
Applicant had some difficulties with his hearing, his ability to testify and
respond to questions was not hindered; and (3) the Applicant did not suffer
from the absence of a representative at the last hearing.
[6]
The RPD next considered the substance of the
Applicant’s claim, for which the determinative issue was the Applicant’s credibility.
The RPD found that the Applicant’s testimony was vague and evasive, that he had
failed to provide documentation that would have corroborated his allegations,
and that he had not demonstrated any subjective fear.
[7]
The RPD identified the following reasons for
doubting the Applicant’s story:
•
The Applicant did not describe the reason for
his departure consistently. He had said that the most serious threat against
him happened in 1996, but then claimed that it was only in October, 2011, that the
risk became so severe that he realized that he had to leave Turkey. On the other hand, he stated in his personal information form narrative that the
event precipitating his departure was a police raid on his home in November,
2011.
•
He reconciled with his ex-wife and re-married
her around the same time, but the Applicant was unable to situate these events
within the timelines for the alleged beatings and raid unless they were
specifically highlighted for him by date. Also, he gave conflicting reasons for
moving to Belen, saying at times it was because of the threats he received and
at other times saying it was to reconcile with his wife.
•
He was confused about the details of the alleged
raid in November, 2011. Originally he said that his wife and children were with
him in the home at the time. When the RPD pointed out that he was divorced at
the time, he said he was visiting his wife and children at her home, and then
later that they were visiting him instead.
•
The Applicant had said that the police demanded
that he provide a list of members of Kova Civaken Kurdistan, but he was evasive
when the RPD asked whether the demand was made verbally or in writing.
•
The Applicant gave off-topic answers when asked
about the problems he faced in 2011.
•
The Applicant was unable to spontaneously reply
to basic questions about the events that allegedly happened to him.
•
The Applicant did not supply credible
documentation to support his claim. Specifically, the RPD expected to see
medical evidence from Turkey and police reports documenting his alleged arrests
and detentions, and it did not accept his excuses for not approaching the
police or prosecutors for that information. As well, there was no evidence to
support the alleged detention of the Applicant’s brother.
•
Although the Applicant originally said that he
did not leave Turkey in 1996 because he did not have the resources to do so, he
later said that he did not leave then because he had to help his family.
[8]
The RPD thus rejected the Applicant’s primary
allegations, but nonetheless considered whether there was any residual evidence
to support the Applicant’s claim for refugee protection.
[9]
The RPD accepted that the Applicant is Kurdish
Alevi and participated in activities of the Peace and Democracy Party [BDP].
However, these factors alone were insufficient to afford him protection.
Although some leaders of the BDP faced problems, the RPD determined that mere
supporters like the Applicant are not persecuted. Furthermore, the RPD found
that the Applicant’s connection to the Alevi faith did not appear to be strong,
and the Turkish government generally respected religious freedom. Although the
Applicant might face some discrimination on the basis of his religion, it would
not be so great as to amount to persecution. Kurds may also face some serious
problems, but the RPD agreed with the United Kingdom Home Office’s assessment
that such problems do not amount to persecution.
[10]
Finally, while the Applicant had mentioned an
explosion in his family’s neighbourhood that injured 37 people and that he was
also concerned about the presence of Syrians who had escaped the civil war, the
RPD found that these events did not have anything to do with a fear of
persecution. As for section 97 of the Act, any risk to the Applicant’s
life as a result of these events was less than likely and would be generalized
risk in any event.
IV.
The Parties’ Submissions
A.
The Applicant’s Arguments
[11]
The Applicant submits that the RPD made improper
findings with respect to the Applicant’s credibility. In particular, the
Applicant says that it was unreasonable for the RPD to decide that the
Applicant’s testimony was vague and evasive, with a lack of corroborating
evidence. Furthermore, the Applicant states that the RPD improperly determined
that the Applicant had no subjective fear of persecution.
[12]
With respect to the vague and evasive nature of
the Applicant’s testimony, the Applicant argues that the RPD was insensitive to
the Applicant’s health problems. According to the Applicant, the repeated
interruptions led to difficulties with respect to the Applicant’s testimony and
his personal problems were such that the RPD should have been on notice and
alert to the Applicant’s situation. The Applicant states that he could not
focus directly in response to the RPD’s questions since he was asked questions
by the RPD which were ambiguous, and that the RPD should have asked clearer
questions.
[13]
On the issue of corroboration, the Applicant
cites the decisions in Lin v Canada (Citizenship and Immigration), 2008
FC 381 at paras 14-16 (available on CanLII) [Lin], and in Maldonado v
Canada (Minister of Employment and Immigration) (1979), [1980] 2 FCR 302 at
305, 31 NR 34 (CA) [Maldonado], arguing that the RPD should have
presumed the Applicant’s testimony to be true and that the exception to require
corroboration does not apply. The Applicant states that it was unreasonable for
the RPD to request a corroborating medical report from a Turkish physician.
Furthermore, the Applicant argues that the RPD improperly looked for police
reports from Turkey when such reports would be from the very persons who had
detained and tortured him.
[14]
On the matter of subjective fear, the Applicant
submits that the most serious incident was not in 1996 but, rather, was in
October-November, 2011; this later incident, the Applicant says, was the
proverbial straw that broke the camel’s back and caused the Applicant to flee
from Turkey. The Applicant states that the RPD unreasonably used the lack of
the Applicant’s credibility to defeat his claim concerning the risk to his
life.
B.
The Respondent’s Arguments
[15]
The Respondent submits that the RPD’s decision
was reasonable. The determination of the Applicant’s credibility was clearly
within the purview of the RPD. The Respondent acknowledges that there were some
interruptions, but these were not such that they affected the overall outcome
which was within the range of reasonable outcomes.
[16]
The Respondent states that the Applicant understood
the questions posed to him by the RPD and that the RPD was sensitive to his
health issues.
[17]
With respect to the lack of corroboration, the
Respondent states that the RPD can consider this when credibility is already in
issue. Clearly, the Respondent says, the RPD had concerns about the Applicant’s
credibility, so it was proper for the RPD to look for a prosecutor’s report,
especially since the prosecutor had allegedly sided with the Applicant.
Furthermore, the Respondent notes that the Applicant failed to provide the RPD
with any documentation about his attempts to get police reports from Turkey. According to the Respondent, it was reasonable for the RPD to look for Turkish
medical documentation rather than that which was supplied by the Applicant.
[18]
As to the Applicant’s lack of subjective fear,
the Respondent submits that it was reasonable for the RPD to question the
Applicant as to why he did not leave in 1996 when his brother had left the
country. After being questioned by the RPD in this regard, the Respondent says
the Applicant changed his story from one where he lacked the necessary
resources to one where he was looking out for his family.
[19]
Moreover, the Respondent states that the absence
of any objective fear was dispositive of the Applicant’s claim. The Respondent
notes that the RPD found that the Applicant had a very low level of political
activity and was not generally aware of issues facing the Alevi, and that
discrimination against the Alevi was not widespread.
[20]
The RPD’s decision, according to the Respondent,
is reasonable and within the range of acceptable outcomes.
V.
Analysis
A.
Standard of Review
[21]
The RPD’s assessment of the Applicant’s
credibility is to be reviewed on a standard of reasonableness (Aguebor v
Canada (Minister of Employment and Immigration), 160 NR 315 at para 4, [1993]
FCJ No 732 (QL) (CA)).
[22]
Credibility findings have been described as the “heartland of the Board’s jurisdiction”, in that they
are essentially pure findings of fact (Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para 7, 228 FTR 43; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 46, [2009]
1 SCR 339 [Khosa]). Likewise, the interpretation and assessment of
evidence by the RPD is reviewable on a standard of reasonableness (Oluwafemi
v Canada (Citizenship and Immigration), 2009 FC 1045 at para 38, [2009] FCJ
No 1286 (QL); Lin at paras 13-14). Furthermore , the RPD’s factual
findings should be given significant deference (Lin at paras 13-14).
[23]
Consequently, this Court should not intervene so
long as the RPD came to a conclusion that is transparent, justifiable,
intelligible, and within the range of possible, acceptable outcomes based on
the law and the facts before it (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190; Khosa at para 59). A reviewing court can
neither substitute its own view of a preferable outcome nor can it reweigh the
evidence (Khosa at paras 59, 61).
B.
The Applicant’s Credibility
[24]
The Applicant argues that it was unreasonable
for the RPD to find that his testimony was vague, evasive, and uncorroborated,
and thus lacked credibility. The Respondent claims the opposite, stating that
the Applicant understood the questions posed to him and that the RPD’s
inferences were justified.
[25]
As noted above, the Board’s findings with
respect to credibility warrant deference. In this case, the RPD did not arrive
at a generalized, imprecise and vague credibility conclusion without
particulars (see e.g. Hilo v Canada (Minister of Employment and
Immigration) (1991), 130 NR 236 at para 6, 15 Imm LR (2d) 199 (FCA)). On
the contrary, the RPD listed many examples of inconsistencies in the
Applicant’s testimony, notably as to what was the most serious threat against
him, why he did not flee Turkey when his brother did in 1996, and where the
alleged police raid occurred in 2011. Also, the RPD’s decision refers to
several confused or unfocused responses by the Applicant as to, for example,
the injuries he suffered in the alleged 1996 and 2011 beatings by the police.
In my view, the RPD reasonably found the Applicant lacked credibility and this
Court should defer to that determination.
[26]
Furthermore, notwithstanding the Applicant’s
argument based on Maldonado and Lin, I agree with the Respondent
that it was reasonable for the RPD in this case to look for some evidence to
corroborate the Applicant’s claims. The RPD did not accept the Applicant’s
claim that there would be no police or legal documents available from Turkey to corroborate his claims. Furthermore, it was reasonable for the RPD to look for
documents from the prosecutor’s office in Turkey, especially since such
documents, according to the Applicant’s testimony, might have assisted his
claim. As Mr. Justice David Near stated in Guzun v Canada (Citizenship and
Immigration), 2011 FC 1324 at para 20 (available on CanLII): “[i]t is not unreasonable to require documentary corroboration
of critical aspects of the Applicant’s claim, including additional information
related to the attacks he claimed to have been subjected to…”.
C.
Fear of Persecution
[27]
The Applicant states that the RPD unreasonably
used the lack of the Applicant’s credibility to defeat his claim concerning the
risk to his life. The Respondent says it was reasonable for the RPD to find the
Applicant was not credible and lacked a subjective fear of persecution.
Furthermore, the Respondent states that the absence of any objective fear of
persecution was dispositive of the Applicant’s claim.
[28]
The RPD found that the Applicant had not
satisfied the onus upon him to establish that he had a well-founded fear of
persecution. Also, although the RPD accepted that the Applicant is Kurdish
Alevi and participated in activities of the BDP, these factors alone were
insufficient to establish that the Applicant had a well-founded fear of
persecution or a foundation for establishing a personal risk to life, or cruel
and unusual treatment or punishment, or danger of torture for the Applicant.
[29]
The RPD’s finding that the Applicant did not
have a well-founded fear of persecution was reasonably open to it in view of
the Applicant’s overall lack of credibility and failure to provide credible
documentation to support the allegations central to his claim. For the same reason,
it was reasonable for the RPD to determine that the Applicant did not have a
subjective fear of persecution. It was also reasonable for the RPD, based upon
its detailed review and analysis of conditions affecting Kurdish Alevi in Turkey, to determine that there was no objective foundation to find a personal risk to the
Applicant’s life.
VI.
Conclusion
[30]
In the result, I find that there is no basis
upon which this Court should intervene with the decision of the RPD. The RPD
came to a conclusion that is transparent, justified, intelligible, and within
the range of possible, acceptable outcomes based on the law and the facts
before it.
[31]
Accordingly, the application for judicial review
is dismissed. Neither party proposed a question of general importance, so none
is certified.
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