Docket: IMM-1607-17
Citation:
2017 FC 904
Ottawa, Ontario, October 12, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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YUSUF MAMIS
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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.
Introduction
[1]
The Applicant, Yusuf Mamis (the “Applicant”),
seeks judicial review of a decision of the Refugee Protection Division (“RPD”
or “Panel”) denying his claim for refugee protection under sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
II.
Background
[2]
The Applicant is a 23-year old citizen of
Turkey. He is a member of a minority religious group, the Alevis; as well as a
minority ethnic group, the Kurds. He is also a member of the Peoples’
Democratic Party (“HDP”), a minority political party in Turkey.
[3]
The Applicant departed Turkey on August 25, 2016,
and travelled to Mexico via Russia and Cuba, apparently with the assistance of
a smuggler. He subsequently entered the United States (“US”), where he was
detained by the US Border Patrol on September 8, 2016. He made a refugee claim
in the US while in detention. He was released from detention on October 28,
2016, and entered Canada on or about November 18, 2016, before his US refugee
claim was determined.
[4]
The Applicant has an uncle residing in Canada
and was permitted to enter Canada and claim asylum under an exception to the Canada-U.S.
Safe Third Country Agreement (“STCA”).
[5]
In his claim for refugee protection in Canada,
the Applicant claimed that he feared returning to Turkey due to his religion,
ethnicity, and his real or imputed “anti-government”
political opinions. The Applicant alleged that he was a known political
activist who had been the victim of attacks by Islamic Jihadists and supporters
of the Nationalist Movement Party, and that he had been arrested, detained, and
beaten by authorities on numerous occasions for participating in various
political and religious events.
[6]
The RPD found that there were material
inconsistencies, omissions, and implausibilities in the evidence led by the
Applicant to establish material aspects of his claim, specifically, that he was
a known Kurdish political activist who had previously been arrested and
tortured. These evidentiary concerns were outlined by the RPD as:
- In his narrative, the Applicant described
being arrested and detained four times since 2013, and having been subject
to torture. However, in his Schedule A Form, when asked if he had ever
been incarcerated, he answered “no.”
Similarly, when the Applicant was interviewed by an officer at the port of
entry (the “POE”), with the assistance of a Turkish interpreter, he
answered “no” when asked whether he had
ever been arrested or subjected to criminal proceedings.
- The POE officer asked the Applicant
whether he had made an asylum claim in the US. The Applicant responded “no.”
- When asked by the POE why he was seeking
Canada’s protection, the Applicant responded “My
uncle lives here and the living standards are good here.” When
asked “what do you fear”, the Applicant
said “I am Kurdish and am afraid of living there.”
He did not mention his arrests or detentions, or being severely mistreated
in Turkey.
- In his narrative, the Applicant mentions
being a member of the HDP since 2014. His Schedule A form indicates that
he was a member since 2007.
[7]
The RPD decided that these issues undermined the
Applicant’s credibility. While acknowledging that the Applicant’s current story
was consistent with the story he gave to US officials, the RPD found that this
suggested that the Applicant “has simply attempted to
alter his evidence at or just before the hearing stage to align with the story
he gave in the US INS notes”. The RPD further speculated that the
Applicant’s story “was likely provided to him by the
smuggler.”
[8]
The RPD also found that the Applicant’s
credibility was undermined by his failure to make an asylum claim in Mexico, or
to “fully prosecute” his claim in the US, which
indicated a lack of subjective fear. The RPD acknowledged the Applicant’s
explanation for not fully pursuing claims in either country – that his uncle
was living in Canada, and could support him – but held that “it simply does not make sense that he would not follow
through on his asylum claim started in the USA if he truly feared persecution.”
Further, the RPD noted that the Applicant was living in Toronto, while his
uncle was in Edmonton, which undermined his explanation that he came to Canada
because he needed to rely on his uncle for assistance.
[9]
As well, the RPD took issue with the Applicant’s
ability to leave Turkey on a genuine passport without issue. Given the
stringent exit controls for international passengers at Turkey’s airports, the
Panel doubted the Applicant would be able to leave so easily had he truly been
a known activist. When the issue was put to him at the hearing, the Applicant
explained that his father had arranged for a bribe to be made to airport
officials, to facilitate his travel out of Turkey. The RPD found that this
fact, which had never been mentioned before, was a material omission. They also
found it implausible that a bribe would be sufficient, given the Applicant’s
purported profile.
[10]
The Panel acknowledged the claimant-specific
documents led by the Applicant to support his claim, but found them
unconvincing. A letter from the HDP indicating that the Applicant was a member
(which was not on letterhead), simply stated he was a member of the HPD,
without mentioning his level of involvement with the party, or any mistreatment
he suffered as a result of being a member. The RPD noted a brief letter from a
psychiatrist in Turkey (undated, and again without letterhead), which stated
that the Applicant received therapy “because of the
torture he suffered”, but gave it no weight “[g]iven
the numerous unresolved inconsistencies in this case.” The RPD also
noted that “no information was tendered by any Canadian
physician or by the Canadian Center for Victims of Torture, for example.”
The Panel further took note of letters from the Applicant’s family and friends,
but assigned them little weight because the authors “were
not made available to be…questioned by the panel.” Overall, the RPD
found a “paucity of corroborating documents that it
would have expected to see in a case such as this.”
[11]
While the Panel accepted that the Applicant was
an Alevi Kurd who may have participated in some political and religious events,
it did not accept that he was a Kurdish political activist known to authorities
who had been subject to detention and torture, or that he would attract severe
harm at the hands of Turkish authorities were he to return to Turkey.
[12]
The Panel went on to consider whether, solely on
the basis of being an Alevi Kurd who supports the HDP, the Applicant would
qualify for protection under either sections 96 or 97 (i.e. the “Residual Claim”).
[13]
The Panel acknowledged the evidence from the
National Documentation Package that Kurdish political activists and human
rights defenders, as well as senior members of the HDP, are subject to severe
treatment at the hands of authorities. However, evidence from the United Kingdom
(“UK”) Home Office’s “Country Information and Guidance”
report on Turkey was also considered, which suggested that ordinary HDP members
generally do not come to the adverse attention of authorities, unless
participating in demonstrations and rallies. The Panel found that the Applicant
did not fit the profile of someone likely to attract the attention of Turkish
authorities for harsh treatment in the future.
[14]
Finally, the RPD considered and accepted
evidence detailing societal abuses of and discrimination against Alevis.
However, it also considered and accepted evidence from the UK Home Office
which, while documenting evidence of unequal treatment and “isolated incidents of societal discrimination and violence”,
concludes that Alevi’s are “unlikely to encounter
ill-treatment by the authorities amounting to persecution solely on the grounds
of religious belief.” The RPD also noted the lack of credible or
trustworthy evidence that the Applicant had difficulty practicing his faith in
Turkey, or would have difficulty if he returned there. The RPD concluded that
the Applicant did not qualify for protection pursuant to sections 96 or 97 as a
result of his religious identity.
III.
Issues
[15]
The issues are:
- Was the RPD’s decision on credibility
unreasonable?
- Was the RPD’s consideration of the
Applicant’s failure to report his claim of asylum in the United States or
to make a claim in Mexico an error in law or unreasonable?
- Did the RPD unreasonably consider the
evidence relating to the Applicant’s departure from Turkey?
- Did the RPD misapply the test to qualify
for protection under section 96?
- Did the RPD err by relying on documents
from the UK?
- Did the RPD fail to consider that the
Applicant would remain politically active in holding he was not in need of
protection?
IV.
Standard of Review
[16]
The standard of review is reasonableness, given
that the issues relate to questions of fact and mixed fact and law.
V.
Analysis
A.
Was the RPD’s decision on credibility
unreasonable?
[17]
The Applicant points to two documents before the
RPD which were not referred to in their reasons. He argues that these documents
support the Applicant’s claim that he had been detained and abused by Turkish
authorities, and that the RPD erred by not referring to them.
[18]
The first of these documents purports to be a letter
from Hakan Dicle, a lawyer in Turkey, dated January 12, 2017, who represented
the Applicant each time he was detained by police. It is sent in support of the
Applicant’s Canadian refugee claim, and it outlines the dates of each
detention, as well as his difficulties in getting his client released. It
states that his client was “mistreated” during
all detentions, but that during the last detention he was “subjected to a severe torture.” The document is not
signed, and without letterhead. The image is partially unreadable – which
appears to be the result of this document having been faxed.
[19]
The second document is a report from Nanette
Mills, a registered psychotherapist in Toronto, produced in support of the
application. Ms. Mills interviewed and assessed the Applicant. She reports that
the Applicant was forthcoming, and that the “fear,
discrimination, threats and violence he has experienced have resulted in
deleterious psychological after-effects.” She further reports that the
Applicant is exhibiting symptoms consistent with post-traumatic stress disorder
(“PTSD”). The Applicant argues that it was particularly erroneous for the RPD
to ignore this report, given their stated concern that “no
information was tendered by any Canadian physician or by the Canadian Center
for victims of torture.”
[20]
Reasons of administrative agencies are not to be
read hypercritically, and decision makers are not required to refer to every
piece of evidence which is contrary to their finding. However “the more important the evidence that is not mentioned
specifically and analyzed in the agency’s reasons, the more willing a court may
be to infer from the silence that the agency made an erroneous finding of fact
‘without regard to the evidence’” (Cepeda-Gutierrez v Canada 1998,
CanLII 8667 at paras 15-16 (FC) [Cepeda-Gutierrez]).
[21]
I find that the RPD did not err by not
specifically referring to these documents. The RPD’s conclusion was not based
solely, or even largely, on the lack of corroborating documents. Rather, the
RPD was centrally concerned with “numerous material
inconsistencies, omissions and implausibilities” in the Applicant’s
evidence, which were extensively detailed in the RPD’s reasons. These included:
- Discrepancies in the Applicant’s own version of events as to whether or not
he had ever been arrested or detained, and how long he had been a member
of the HDP;
- Omissions of
having claimed refugee status in the US, having bribed an official at the
Turkish airport, and of being arrested or detained in Turkey; and
- The implausibility of exiting
Turkey without issue after paying a bribe to an official, despite being a
known political activist who had been tortured by the authorities
[22]
While the documents relied on by the Applicant
may lend some support to the Applicant’s overall narrative, they do not cure
the above defects in the Applicant’s own evidence, which appears to have been
the central basis of the RPD’s decision. The evidence is not of sufficient
importance that the RPD erred by not specifically referring to it. Contrary to
the Applicant’s argument, the importance of these two documents does not rise
to the level of what was considered in Cepeda-Gutierrez.
[23]
Finally, the Applicant’s argument that it was an
error for the RPD to hold that “no information was
tendered by any Canadian physician or by the Canadian Center for Victims of
Torture” given Ms. Mills’ report, is without merit. The author of the
report led by the Applicant is not a physician, but rather a psychotherapist.
The RPD’s specific use of the word “physician”
in this context implies that they were aware of Ms. Mills’ report.
[24]
Finally, there is certainly a reasonable basis
in the evidence for the Panel’s adverse credibility findings, notwithstanding
the fact the two documents referred to by the Applicant were not mentioned or
addressed.
[25]
As stated by Chief Justice Crampton in Kaur v
Canada (Minister of Citizenship and Immigration), 2012 FC 1379, at
paragraphs 33-34:
33 In my
view, this recent jurisprudence from the Supreme Court has significantly
reduced the scope for setting aside decisions of the Board on the basis that it
did not consider or did not sufficiently consider the contents of a
psychologist's report. It has also significantly narrowed the range of
potential circumstances in which the Board may be said to have an obligation to
explicitly consider and address, in its reasons, the contents of a
psychologist's report in making credibility findings.
34 If the
Court can ascertain any reasonable basis in the evidence for the Board's
adverse credibility findings, or if those findings can be said to be rationally
supported, for example, on the basis of confirmed and important
inconsistencies, contradictions or omissions [ICOs] in the evidence, those
findings should ordinarily withstand the Court's review (Dunsmuir, above at
para 41). This is true even if the evidence in question is not specifically
mentioned, or is only partially addressed, in the Board's decision.
Emphasis in original
B.
Was the RPD’s consideration of the Applicant’s
failure to report his claim of asylum in the United States or to make a claim
in Mexico an error in law or unreasonable?
[26]
The Applicant appears to make several arguments
here. First, the RPD’s consideration of this factor would necessarily have been
different had they not ignored a psychotherapist’s report, which indicated that
the Applicant has PTSD. Second, the RPD erred when it stated that “the claimant illegally entered Canada”, which then
undermined their analysis. Third, the RPD unreasonably “speculated”
about when refugees will seek protection, “generally
speaking”, and wrongly assessed the subjective nature of the Applicant’s
fear through objective terms. Finally, the RPD was mechanical in its analysis
of this factor, and it should have considered that the US might not have
protected the Applicant, in which case his failure to complete his claim in the
US actually supports his subjective fear.
[27]
The Respondent acknowledges that, in one
instance, the RPD incorrectly stated that the Applicant’s entry to Canada was “illegal”, but argues that it has nothing to do with
the analysis of the Applicant’s subjective fear. The Respondent also points to
case law which holds that delays in seeking asylum may indicate a lack of
subjective fear, and argues that it was open for the RPD to consider this
factor here.
[28]
With respect to the psychotherapist’s report,
this document was not “ignored.” Moreover, the
report does not state that the Applicant “has PTSD”,
but rather that he is exhibiting symptoms consistent with PTSD. Finally, when
asked why he came to Canada, the Applicant did not offer his psychological
condition as an explanation. Rather, he stated that it was always his intention
to come to Canada, where he has an uncle.
[29]
The remainder of the Applicant’s arguments
amount to taking a microscopic view of the RPD’s reasons, and/or a request for
the Court to reweigh the evidence differently. The RPD did state, wrongly, that
the Applicant entered Canada illegally. However, elsewhere in the Decision, the
RPD recognized that the Applicant “was allowed to enter
into Canada because he has a maternal uncle in Canada” (para 2).
Contrary to the Applicant’s submissions, when the RPD decision is read in
context, it is clear that the reference to “illegality”
is not a basis for the RPD’s assessment of this factor. Rather, the RPD
examined the Applicant’s failure to claim elsewhere, as well as the Applicant’s
explanation for why he was living in Toronto as opposed to Edmonton, which it
found unconvincing.
[30]
As well, the Applicant’s failure to claim at an
earlier opportunity is a relevant factor when assessing an applicant’s
subjective fear, even when an applicant arrives in Canada by way of an
exception to the STCA. This factor was not treated mechanically as
suggested by the Applicant. The RPD considered the Applicant’s explanation for
why, in spite of his purported fear of persecution, he waited until arriving in
Canada before fully seeking protection. It found this explanation unconvincing,
noting that the Applicant was living alone in Toronto rather than in Edmonton
with his uncle, whose support he apparently required. Finally, while the
Applicant did offer an explanation for why he was living in Toronto– there are
more services for Kurdish refugees, and the claim would be more likely to
succeed there – it was not unreasonable for the RPD to note that the
Applicant’s vast separation from his uncle was inconsistent with his assertion
that his uncle’s support was essential to him.
C.
Did the RPD unreasonably consider the evidence
relating to the Applicant’s departure from Turkey?
[31]
The RPD held that it was implausible that
Applicant was able to leave via a Turkish airport, where Turkish citizens are
subject to exit requirements, after simply bribing an airport official. The
Applicant argues that this was unreasonable because it selectively ignores
evidence that authorities at Turkish airports only check for defaults in
military service, arrest warrants, and tax arrears, none of which applied to
the Applicant.
[32]
The Respondent argues that it was reasonable for
the RPD to note the apparent ease by which the Applicant left Turkey, despite
being known to Turkish authorities, as well as the “evolving
evidence” that a bribe was required to leave the country.
[33]
The RPD’s consideration of this factor was
reasonable. The evidence before the Panel was not that exit-checks are only for
warrants, defaults in military service, or tax arrears, but that Turkish
officials scan for “the person’s military status along
with other information, such as convictions, arrest warrants and tax arrears”.
It was reasonable for the RPD to think that the Applicant’s apparently
extensive history with Turkish police might also come up as part of this
search, and to ask more about it. Further, if the Applicant is now arguing that
the exit requirements were of no concern, it is unclear why he would need to
bribe airport officials at all. It cannot be maintained that it was
unreasonable for the RPD to consider this factor, as well as the Applicant’s belated
evidence regarding the bribe.
D.
Did the RPD misapply the test to qualify for
protection under section 96?
[34]
The Applicant argues that it is unclear whether
or not the RPD understood the correct test under section 96 (whether there was
a serious possibility of persecution) because at a certain point it states that
the Applicant was not “likely to attract the attention
of Turkish authorities” (para 28), thus suggesting a balance of
probabilities test. The Applicant argues that this Court cannot be certain the
correct test was employed, and the decision should therefore be quashed. The
Applicant also relies on case law holding that merely reciting the correct test
in one part of the reasons does not necessarily mean that the decision-maker
applied the correct legal test throughout (Talipoglu v Canada (Minister of
Citizenship and Immigration), 2014 FC 172 at para 31).
[35]
When the Decision is read as a whole, it is
clear that the RPD understood and applied the correct test. It is referenced,
repeatedly, throughout the reasons:
The panel also considered whether the
claimant would meet the burden of proving a serious possibility of persecution…
(para 24)
Accordingly, the panel finds that the
claimant is an Alevi who was a supporter of the BDP (now HDP) but not a party
member and who may attend peaceful legal demonstrations and practice his faith
has not established that he has a serious possibility of harm rising to the
level of persecution if he were to return to Turkey (para 34).
…there is no persuasive evidence before the
panel that the claimant has a profile that would attract attention of the
Turkish authorities and the panel finds that there is not a serious possibility
of persecution or risk of harm as the claimant does not have the profile of an
Alevi Kurd likely to experience such treatment in a systemic way (para 35).
[36]
The excerpt quoted above shows a distinction
between evidentiary findings (“there is no persuasive
evidence before the panel that…”) and the ultimate legal test being
applied (“the panel finds that there is not a serious
possibility of persecution”).
E.
Did the RPD err by relying on documents from the
United Kingdom (UK)?
[37]
The Applicant argues that the RPD erred by
relying on documents from the UK, because UK immigration laws employ a
different, higher test for obtaining refugee protection (a “reasonable degree of likelihood”).
[38]
The RPD relied on information about Turkey from
the UK Home Office as evidence in its assessment of the conditions for
Alevi Kurds in Turkey. In did not err in doing so. The RPD is entitled to
consider any evidence it considers credible and trustworthy. Nothing in the
RPD’s analysis on this point suggests that the RPD employed an incorrect,
UK-based legal test for assessing whether the Applicant qualified for
protection.
F.
Did the RPD fail to consider that the Applicant
would remain politically active in holding he was not in need of protection?
[39]
The Applicant argues that the RPD failed to
consider that he would continue attending peaceful demonstrations, which would
put him at risk. The Respondent does not address this point.
[40]
The RPD did acknowledge that the
Applicant may continue attending demonstrations:
…the panel finds that the claimant is an
Alevi who was a supporter of the BDP (HDP) but not a party member and who
may attend peaceful legal demonstrations and practice his faith has not established
that he has a serious possibility of harm rising to the level of persecution if
he were to return to Turkey at present” (para 34, emphasis added)
[41]
The RPD accepted documentary evidence that “when ordinary members of the HDP have come to the adverse
attention of the authorities, this has generally been whilst participating in
demonstrations and rallies”, which might appear to contradict their
conclusion that the Applicant was not “likely to
attract the attention of Turkish authorities for harsh treatment in the
future.”
[42]
However, the RPD’s overall assessment of the
conditions in Turkey – that, generally, supporters of the HPD would not
ordinarily come to the attention of the authorities, unless they were senior or
otherwise well known – was reasonably open to them on the record. The
conclusion that the Applicant would not face a serious possibility of
persecution was reasonable.
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