Docket: IMM-1060-17
Citation:
2017 FC 960
Ottawa, Ontario, October 27, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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NASIR DAG
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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
[1]
The applicant is a Turkish citizen who comes
from the village of Elbistan. He claimed refugee status both in light of his
religious/ethnic profile, as an Alevi Kurd, and perceived political opinions
because his village is tied to the Kurdistan’s Workers’ Party [PKK]. On January
18, 2017, the Refugee Protection Division [RPD] of the Immigration and Refugee
Board determined that the applicant was not a Convention Refugee or a person in
need of protection in Canada, leading to the present judicial review application.
[2]
The applicant obtained a US visa in January
2012, through the help of an agent, who was apparently arrested and killed,
although this fact is not mentioned by the applicant in his narrative. He left
Turkey for Seattle on January 14, 2012 with the intention of eventually coming
to Canada. Indeed, he crossed the Canadian border near Vancouver and traveled
to Toronto to make a refugee claim. The applicant alleged four instances of
detention and abuse by the Turkish authorities. In January 2007, he was beaten
and detained after being accused of attending a terrorist’s funeral [first
incident]. In December 2008, he was detained and beaten after having attended
the commemoration of the K Maras massacre; he was falsely accused of chanting
slogans and attending funerals of PKK members [second incident]. In May 2010, after
a protest against Turkish authorities happening in a nearby village, he was
detained along with many other people and was released after having been beaten
and interrogated [third incident]. In August 2011, the applicant’s house was
raided by the police who ransacked his belongings, and beat the applicant in
front of his wife and children. He would also have been taken by the police
after being accused of Christian propaganda. He was subsequently accused of being
a terrorist and a separatist; he was detained for 4 days [fourth incident].
[3]
On December 9, 2013, the RPD dismissed the
claim, but this first decision was later set aside by this Court on February 5,
2015. The claim was sent back for redetermination to another panel and hearings
were conducted on September 21, 2016, November 17, 2016 and December 14,
2016. His claim was rejected a second time on January 18, 2017, leading to the
present judicial review application. In the impugned decision, the RPD
determined that the applicant was not credible regarding the material elements
of his claim, and found his profile was not indicative of more than a mere
possibility of forward looking risk. The officer found the applicant had not
satisfied the burden of establishing a serious possibility of persecution on
Convention grounds, or that he was facing a danger of torture, risk to his
life, or risk of cruel and unusual treatment or punishment if he were to return
to Turkey.
[4]
In a nutshell, the applicant submits three
distinct grounds of review: (1) a number of key findings with respect of the
first and fourth incidents and the execution of the agent are perverse and
render the credibility conclusion unreasonable; (2) the RPD misconstrued the
purpose of the psychological evidence and it also dismissed corroborating
evidence on improper grounds; and, (3) the RPD’s assessment of risk did not
take into account the most recent country conditions and the fact that the
applicant is known as an Alevi Kurd.
[5]
The present application for judicial review is
dismissed.
[6]
It is apparent that the RPD considered all the relevant
evidence in the record, including the transcripts of the previous hearing, the
extensive documentary evidence submitted by the applicant, the medical reports
corroborating the applicant’s injuries and another two reports attesting to his
psychological state. Overall, I find that the conclusion reached by the RPD is
reasonable and must be upheld by the Court. In this respect, the RPD’s lengthy
reasons are clear and articulate. They provide a rational basis for dismissing
the applicant’s claim. The arguments of attack made by the applicant are
unfounded.
[7]
The RPD’s negative credibility finding is based
on the cumulative effect of multiple omissions, contradictions, absence of
explanations or implausibilities. The following findings have not been
challenged or seriously questioned by the applicant:
(a)
When interrogated at the hearing, the applicant could
not remember the birthdates and ages of his children and wife, despite claiming
family was the reason he returned to Turkey between extensive periods of work
abroad. Although this is not a “hugely significant
credibility concern” it is nevertheless noted by the RPD (para 14);
(b)
There were also several contradictions in the
alleged work history abroad. The Personal Information Form [PIF] was amended
several times and the countries listed changed. When asked about it, the
applicant said he does not remember a lot of things. Plus, the applicant
submitted a lot of evidence attesting of his work abroad, but has not submitted
a passport to corroborate his travels (para 25). There is no evidence
supporting his presence in Turkey at the times alleged (para 25);
(c)
The applicant’s testimony regarding his
employment in Turkey was also inconsistent with his documents (paras 26 and 27).
The applicant also made a “shocking” allegation
in his testimony that there was a mention in the Turkish government computer
system that he was linked to the PKK (para 28). This would have occurred in
2004, but the applicant said he was listed because of a complaint in 2007 (para
28). When this inconsistency was pointed out, the applicant got very evasive,
and shifted his story to being prosecuted because of his nationality (rather
than political affiliation). The RPD was highly concerned by this omission and
inconsistencies. This led to find that the applicant was likely not being
truthful to the panel on his past activities (para 29);
(d)
There is a lack of evidence placing the claimant
in Turkey in the recent past, including a complete gap between 1994 and 2004
(para 30);
(e)
The witness Salman Vural, a cousin of the applicant,
could not place him in Turkey after 1988 (para 31). This witness is a now a
Canadian citizen. He testified to often going back to Turkey on vacation, which
led the officer to think the general risk for Alevi Kurds was not that extreme
(para 32);
(f)
The applicant submitted a letter from Dr. Hoca
diagnosing him with anxiety and depression because of separation from his
family (para 44). The RPD found that this did not corroborate the claimant’s
allegations about what happened back in Turkey and does not overcome her
credibility concerns; and
(g)
The RPD found that the claimant’s repetitive
trips out and back from Turkey are inconsistent with well-founded fear and
undermine his allegations of persecution (para 45).
[8]
I will now examine the grounds of attack by the
applicant with respect to the following key findings.
[9]
Starting with the first incident in 2007, the
applicant testified that this occurred because of a complaint made by a
nationalist store owner, unlike what was affirmed in his PIF (paras 15‑16).
When the contradiction was raised, the applicant responded that he omitted this
information in his PIF because “it was a long story”
(para 16). The RPD also considered a letter from a co-detainee which referred
to this complaint, but rejected it because it was not in the form of an
affidavit (para 16). Before this Court, the applicant claims that the RPD acted
unreasonably in doing so because his testimony was not inconsistent with his
narrative, and instead simply added further details. In his narrative, the
applicant stated he was stopped on the way back from the funeral of an Alevi
religious figure, and that he was arrested based on the perception he was
coming back from a terrorist’s funeral. In his testimony, he mentioned he was
arrested because of a complaint made by a Turkish nationalist store owner. I
agree with the respondent that it was reasonable to draw a negative credibility
inference from the applicant’s omission to mention the complaint. The RPD
specifically found this was an important omission because it would suggest he
was targeted specifically by the authorities, rather than being randomly
apprehended. Moreover, this complaint also reappeared throughout the testimony
and thus should have been mentioned in the narrative.
[10]
With respect to the fourth incident – which the
applicant recounts as being the “most memorable”,
the RPD noted that the applicant’s testimony regarding the date and the details
of the event was again inconsistent with the PIF. The date was off by a year,
and the account of the events was completely different (para 17). The applicant
testified that the reason for this arrest was the 2007 complaint, unlike what
was stated in his PIF statement (para 18). Further, the applicant could not
remember being accused of throwing a Molotov cocktail, despite this being
stated in his narrative (para 19). The RPD recognized the applicant’s fragile
psychological status, but also thought such a key event in his life should have
had a clearer place in his mind. The RPD found the event probably did not occur
as described, if at all, which hindered all the evidence of past detentions
(para 19). Before this Court the applicant now claims the RPD impugned his
credibility based on two non-existent inconsistencies. First, his narrative
stated he was accused of being a separatist and terrorist, which is consistent
with his testimony of being detained based on PKK connections. He claims his
narrative never said that he was detained because of the Christian book. He
further notes that the fact he forgot about the Molotov cocktail was not an
inconsistency or incoherence, but was the result of memory failure due to his
psychological condition. The respondent recognizes that the RPD may
misinterpret the narrative as stating that the Christian book was the reason
for his detention. Yet, the applicant did omit this detail in his testimony and
describing the 2011 event, and the RPD could draw a negative credibility
inference from this omission. I agree with the respondent that it was
reasonable for the RPD to point out inconsistencies between different versions
of the 2011 detention recounted by the applicant in his PIF narrative and in
his testimony. He did not mention the Christian book or the Molotov cocktail in
his testimony while those two facts seemed key in his PIF narrative. He instead
focused on the mysterious 2007 complaint which was completely absent from the
PIF. I am also satisfied that the RPD acknowledged the applicant’s potential
psychological issues, and tried to ask open questions, as visible from the
examination of the hearing transcripts.
[11]
There was also a “startling
revelation during the hearing” which the RPD found “very significant” (para 20). The applicant revealed
in the hearing that he had to pay $37,000 to an agent to obtain the US visa.
This agent was subsequently arrested and killed. The applicant mentioned in the
hearing being afraid that the agent revealed his name to the authorities before
his execution. The applicant stated that, but for this execution, he would have
returned to Turkey. The officer found that this indicated the claimant did not
really have problems with the Turkish authorities. In addition, there has been
no mention of this execution and its impact on the applicant in the previous
RPD instance, before the Federal Court, or in all the PIF amendments (para 21).
The RPD found this omission had an important impact on the applicant’s
credibility, and went on to add that “this testimony,
in particular that he would have returned to Turkey but for the situation with
Ahmet, to strongly suggest the claimant did not have problems with the
authorities in Turkey, he is not wanted and he has fabricated his entire asylum
claim” (para 21).
[12]
Before this Court, the applicant challenges the
RPD’s interpretation of his testimony about the execution of the agent. He
claims the RPD misconstrued this as being the sole basis for his risk, and
thought this meant he withdrew all his other fears of persecution. He claims it
was indefensible to find his credibility diminished based on that finding, and
to conclude that he has fabricated the entire claim. Instead, he argues he was
only providing this example to explain why his name may have been shared with
the authorities, and of why he feared the authorities. Since the RPD gave too
much weight to that single finding, the decision was unreasonable. I cannot
agree with the applicant’s interpretation of the RPD’s decision. First of all,
when reading the testimony, it was reasonable for the RPD to interpret the
applicant’s words as meaning that, but for that execution, he would have
considered going back to Turkey. Of course, another interpretation would have
been possible, but it is not our Court’s role on judicial review to reassess
the evidence. Indeed, the transcript reads as follows:
Member: So if this issue hadn’t happened
with Ahmed, would you have been able to go back to Turkey?
Claimant: I was afraid since this guy was
killed. I believe that I may also be killed. I was afraid. So that’s why I
didn’t go. Otherwise, who would want to be apart from their children?
(see the certified tribunal record at 1553)
[13]
Furthermore, when reading the decision, the RPD otherwise
clearly states that it is making a negative credibility finding because of the
applicant’s omission to mention the execution up until his hearing, not because
the importance of the execution for the applicant means he was “withdrawing his other fears”, like the applicant
contends. The RPD believes this story may be an embellishment at the hearing,
and may indicate the absence of other problems with the authorities. The RPD
can make negative credibility findings because of omissions, and it was
reasonable for the RPD to do so in this case. If it were true, the agent’s
execution would have been highly indicative of a risk for the applicant in
Turkey. Accordingly, it was reasonable for the RPD to question why this was
omitted.
[14]
I also dismiss the argument made by the
applicant that the RPD otherwise unreasonably discarded relevant corroborative
evidence.
[15]
The applicant’s nephew, Seyit Dag, provided an
affidavit to support the refugee claim (para 33). However, the applicant had
not seen the nephew in a long time, and the nephew was not involved in any of
the incidents listed in the file. The affidavit mentioned that the nephew
witnessed raids, but he was actually only told about them. The RPD found the
affidavit to be fraudulent, which undermined the credibility of the entire
evidence (para 33). In any event, Seyit who claimed refugee status in Canada
returned to Turkey despite the allegations of risk he made because he is a
Kurdish Alevi (para 34). The RPD therefore attributed no evidentiary weight to
the other documents submitted (letters and photographs of unidentified
individuals), as they were all unsworn and unaccompanied by identity documents
(para 35).
[16]
The applicant submits it was unreasonable to
impugn this corroborating evidence for being unsworn and letter writers absent.
Evidentiary requirements should not be too strictly applied in view of the
difficulty of proof inherent to the refugee’s special situation. The respondent
replies that the RPD reasonably found the nephew’s affidavit to be fraudulent,
as there was a clear unexplained contradiction regarding the fact the nephew
had not actually witnessed the raids. As for the other documents, the
respondent claims it was reasonable to give little weight to the other
documents in light of the fraudulent affidavit and the overall assessment of
the applicant’s credibility. I agree with the respondent. While evidentiary
requirements should be relaxed before the RPD, and documents should not be
dismissed simply because they were not sworn, the fact a witness lied in its
affidavit is a relevant factor to consider. Furthermore, in light of the
numerous negative credibility findings, I am not satisfied that these documents
alone would be determinative.
[17]
The applicant also challenges the little weight
attributed by the RPD to the psychological evidence.
[18]
The applicant filed a 2012 letter from a doctor
in Canada, Dr. Gumuskemer, which referred to a hospital visit in Elbistan in
1998 for a head injury (para 36). The doctor is only recounting the story as
told by the applicant. In the first refugee hearing, the applicant mentioned
seeing that doctor only because he needed this report. The RPD therefore
doubted the doctor’s impartiality and the provenance of the letter. The RPD
gave it little weight (para 36). A second letter from a Canadian doctor, Dr.
Hirsch, corroborates the allegation of assault from 1998 (para 37). Again,
the doctor is only recounting what the applicant told him. This account is also
inconsistent with the PIF. The RPD gave the letter little weight (para 37). The
RPD also gave little weight to Dr. Devins’ psychological report attesting of a
major depressive disorder and post-traumatic stress disorder [PTSD] (paras
38-42). The RPD dismissed the report because the doctor only based it on
evidence provided by the applicant, which the RPD found to lack credibility.
The RPD added that a psychological report cannot serve as a cure-all for
deficiencies in a claimant’s testimony.
[19]
Before this Court, the applicant claims it was
unreasonable to doubt Dr. Gumuskemer’s impartiality simply because the applicant’s
brother was able to obtain the letter for him. This is an unsound and
speculative reason to impugn evidence. As for Dr. Hirsch’s letter, the
applicant claims that the RPD dismissed this objective evidence due to an
inconsistency in dates given at a previous RPD hearing, and offered his opinion
that the doctor was incorrect, which it does not have the expertise to do. The
applicant claims that it was unreasonable to dismiss Dr. Devins’ report solely
because it was exclusively based on evidence provided to him by the applicant,
and which was found to lack credibility. It was a circular reasoning to dismiss
the conclusions of a psychologist or a psychiatrist because of credibility
findings, when the purpose of the report is to actually alert the RPD of how
symptoms of PTSD can impact credibility findings.
[20]
The respondent submits that the RPD reasonably
gave little weight to the psychological evidence in explaining concerns with
the applicant’s credibility. Indeed, the RPD showed sensitivity to psychological
issues during the questioning, asked him open ended questions and tried to make
it as easy as possible to recount events. Yet, no psychological report can be a
cure-all for deficiencies in the applicant’s evidence. I agree with the
respondent. The RPD could give little evidentiary weight to findings that were
simply recounted by the applicant. While Dr. Devins’ report contained some findings
that were based on his direct observations of the applicant, I am not satisfied
that admitting the report would have changed the RPD’s decision. The report
basically recommended to show sensitivity to the applicant’s psychological
state and to give him breaks during the hearing, both of which were done.
Moreover, the RPD would still have been entitled to give little weight to what
the applicant simply told the psychiatrist, and that includes allegations of
memory loss. As such, the RPD still has made important credibility findings
based on the inconsistencies between the testimony and the PIF narrative.
[21]
Finally, despite the credibility issues with the
applicant’s story and allegations of persecution in Turkey, the RPD accepted
that he was an Alevi Kurd, and went forward with considering the risk he could
face from this national/religious background. Yet, the RPD was unable to find
that this profile alone was sufficient for a grant of asylum. The RPD based its
decision on a 2016 country report from the UK Home Office which recognized that
Kurds were facing discrimination on the part of the Turkish authorities, but that
it did not amount to persecution within the terms of the Convention or other
inhumane and degrading treatment. Another Home Office report led the RPD to
similar conclusions with respect to the Alevis: they were facing
discrimination, but not persecution. The RPD also stated having considered the
change in situation since the July 2016 coup, as described by counsel and
extensive documentary evidence. The RPD however could not conclude that all
Alevi Kurds are currently at risk in Turkey. The RPD based this decision on Dudu
v Canada (Citizenship and Immigration), 2014 FC 626 and Birkas v
Canada (Citizenship and Immigration), 2013 FC 1184 at paragraph 8, which
both essentially said that claims based on a single profile can succeed only if
all persons with that profile (ie. all Kurdish Alevis) have a well-founded fear
of persecution or establish a personalized risk or danger. This was not the
case here.
[22]
Before this Court, the applicant submits that
the RPD’s assessment of risk based on his profile as a Kurdish Alevi man from
Elbistan was made without regards to the evidence, for his risk profile, and
for the cumulative nature of the persecution alleged. The applicant submits that
the RPD relied on outdated country conditions and ignored the compelling
evidence of deteriorating conditions after the July 2016 coup, including the
multiple cases of violence against similarly situated persons. He criticizes
the lack of specific analysis of all the evidence filed, which amounts to “a blanket dismissal of all the post-coup evidence filed”,
and leads to the inference that all the post-coup country conditions evidence
was ignored. The applicant’s arguments are not convincing. Indeed, the RPD
mentioned the coup of July 2016 (para 48) and it was not unreasonable to refer
to the 2016 UK Home Office report. Although the applicant may have preferred a
more detailed discussion of the evidence, the RPD is not required to list and
discuss every document. It is apparent that the RPD also considered the evidence
related to conditions post July 2016.
[23]
Before this Court, the applicant also submits
that the RPD did not consider his particular risk profile. He was in a more
vulnerable position because he cannot hide his Kurdish identity due to his
name, place of birth, and accent: all of which the RPD should have considered. This
was relevant because the evidence shows that many Kurds protect themselves by
hiding their identity. The RPD should also have looked at the cumulative effect
of being Kurdish and Alevi. These grounds of attack are also unfounded in the
Court’s opinion. The RPD actually considered the applicant’s profile as an
Alevi Kurd from the restive areas of Turkey in considering his risk. The RPD
also considered the risk cumulatively. I also agree with the respondent that
prospective risk based on any perceived affiliation with the PKK was considered
and duly discarded as being non credible. This is apparent from the questioning
with respect to the complaint of 2007 (transcripts at pages 1556 to 1558).
[24]
Overall, when read as a whole, the impugned
decision is reasonable.
[25]
For the reasons above, the judicial review
application is dismissed. There is no question of general importance warranting
certification.
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