Docket:
IMM-11305-12
Citation: 2013 FC 1150
Ottawa, Ontario, November 13, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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EMRE TOKTOK
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
In 2012, a panel of the Immigration and Refugee
Board concluded that Mr Emre Toktok should be granted refugee status in Canada based on his fear of religious and ethnic persecution in Turkey. It also found that Mr Toktok
should not be excluded from refugee status even though in 2009 a Turkish court
had convicted him, in absentia, of writing a false cheque.
[2]
The applicant, the Minister of Citizenship and
Immigration, maintains that the Board’s conclusion on the issue of exclusion
was unreasonable. The Minister argues that the Board should have found that
there were “serious reasons for considering” that Mr Toktok had committed a
“serious non-political crime” and, therefore, should have been excluded under
Article 1F(b) of the Refugee Convention. The Minister asks me to quash the
Board’s decision and order another panel of the Board to reconsider Mr Toktok’s
application.
[3]
I can find no grounds for overturning the
Board’s decision. The Board had good reason to doubt the authenticity of the
Turkish record of conviction. I must, therefore, dismiss this application for
judicial review.
[4]
The sole issue is whether the Board’s decision
on exclusion was unreasonable.
II. The
Board’s Decision
[5]
The Board found Mr Toktok to be credible. There
is no dispute about his claim of persecution.
[6]
The Minister presented the Board with a record
of conviction against Mr Toktok from 2009. He was found guilty of writing a bad
cheque on December 30, 2008, even though he had left Turkey nine days earlier.
Still, the parties agreed, and the Board found, that the record of conviction
was genuine.
[7]
The question was then whether, given the record
of conviction, there were serious reasons for considering that Mr Toktok was
guilty. The Board accepted Mr Toktok’s claim that the charges were trumped up
by his persecutors in Turkey, noting that the judiciary in Turkey is “fairly corrupt” (citing Altun v Canada (Minister of Citizenship and Immigration),
2012 FC 1034).
III. Was
the Board’s decision on exclusion unreasonable?
[8]
The Minister argues that the Board’s assessment
of Mr Toktok’s credibility was not a valid basis for discounting the
genuineness of the record of conviction against him. In fact, there was no
evidence that the document was the product of collusion or corruption. Nor was
there any reason to believe that Mr Toktok was prevented from defending himself
against the charge or appealing the conviction.
[9]
In my view, the Board was entitled to go behind
the record of conviction to consider whether there was evidence that Mr Toktok
had actually committed a serious, non-political crime. The Board noted that the
allegedly fraudulent cheque was written after Mr Toktok had arrived in Canada;
he had received no benefit from it; no arrest warrant or Interpol warrant had
been issued against him; the conviction was consistent with his claim that he
had been persecuted by Turkish police; he had voluntarily disclosed the
existence of the conviction to the Board; documentary evidence confirmed that
the Turkish court system is corrupt; and, because the proceedings took place in
absentia, Mr Toktok had no opportunity to defend himself.
[10]
In these circumstances, the Board had an
obligation to consider whether the conviction was genuine (Altun, above;
Hernandez v Canada (Minister of Citizenship and Immigration), 2010 FC
1323).
[11]
In light of the evidence before it, I find that
the Board’s decision fell within the range of possible, acceptable outcomes
based on the facts and the law. It was not unreasonable.
IV. Conclusion
and Disposition
[12]
The Board properly considered all the evidence
before it, including the record of conviction, in determining whether there
were serious reasons for considering whether Mr Toktok had committed a serious,
non-political crime. Its conclusion that Mr Toktok should not be excluded from
refugee protection was not unreasonable in the circumstances. I must,
therefore, dismiss this application for judicial review. Neither party proposed
a question of general importance for me to certify, and none is stated.
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