Docket:
IMM-10210-12
Citation: 2013 FC 949
Ottawa,
Ontario, September 13, 2013
PRESENT: The Honourable Mr. Justice Shore
|
BETWEEN:
|
|
MEHMET ALI ATACAN YURTAL
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant seeks a judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board [Board], dated September 18, 2012, wherein, it was determined that he is
neither a Convention refugee under section 96 nor a person in need of
protection under section 97 of the Immigration and Refugee Protection Act,
SC 2001 c 27 [IRPA].
II. Background
[2]
The Applicant, Mr. Mehmet Ali Atacan Yurtal, is
a citizen of Turkey; and, was born in 1971. He is of Azerbaijani origin and
practices the Christian faith for more than a decade.
[3]
The Applicant grew up in the province of Kars to
a family of the Shia Caferi religious denomination.
[4]
In 1997, the Applicant became active in a
leftist opposition political party [the Emek Partisi or EMEP]). He soon,
thereafter, converted to Christianity in 2000.
[5]
In August 2000, the Applicant was arrested by
the police because of his religious activities during which time he suffered beatings
during his detention by the police.
[6]
The Applicant states that the police continued
to harass him after this event; therefore, he decided to move from Istanbul to
Ankara in April 2001.
[7]
In 2002, the Applicant related he was ambushed
and severely beaten by a gang of Turkish extremist nationalists, after
attending a church service in Ankara. A letter by Dr. Nurullah Zengin, dated
August 3, 2012, confirms that the Applicant was admitted to hospital on July
21, 2002, for fractures suffered to his right arm and left elbow (Applicant’s
Record [AR] at pp 161-162).
[8]
In April 2007, the Applicant was arrested by
police again, this time for putting up a banner over a bridge in Ankara in
protest for the murder of three Christians in the neighbouring city of Malatya.
He explained he was detained for questioning and again subject to beatings and
torture. A letter by Dr. Nurullah Zengin, dated August 3, 2012, confirms that
the Applicant was admitted to the hospital on April 27, 2007, for a dislocated
left shoulder (AR at pp 163-164).
[9]
On May 1 2008, the Applicant testified he
attended the May Day Rally with the EMEP in Istanbul, where police confronted
demonstrators with armoured vehicles and shields, and used tear gas to disperse
the crowd. The Applicant was apprehended by police, together with other
demonstrators, and severely beaten.
[10]
In February 2009, the Applicant began working as
a seaman for an international shipping company. He continued working in this
capacity until November 2010.
[11]
In September 2009, the Applicant related that a
Sunni neighbour complained to the police of his distributing brochures for his Christian Protestant church; after which, he was questioned in respect of his religious and
political activities and beaten by the police.
[12]
In June 2010, the Applicant was again arrested
for distributing brochures, subsequent to more complaints made to the police by
the neighbours; thereupon, he was detained and again beaten by police.
[13]
In July 2010, after being rehired by the
shipping company, the Applicant again left Turkey. The Applicant, as a member
of the crew, travelled for four months on a cargo ship, stopping in multiple
countries before eventually arriving in Canada. He docked in Quebec City on
November 17, 2010.
[14]
On November 30, 2010, subsequent to leaving his
ship and crew with its related duties, he travelled by bus to Toronto and
claimed refugee protection.
[15]
The Board heard his claim on April 2, 2012 and
also on July 19, 2012.
III. Decision under Review
[16]
In its decision, dated September 18, 2012, the
Board concluded that the Applicant was neither a Convention refugee nor a
person in need of protection. The Board’s conclusion was that the Applicant did
not have a well-founded subjective or objective fear of persecution neither on
religious nor political grounds.
Religious
grounds
[17]
With respect to the Applicant’s first allegation
of persecution, based on religious grounds, the Board found that the Applicant
failed to demonstrate that he feared persecution in Turkey. The Board
determined that the alleged incidents on which the Applicant based his claim
were isolated and termed them as random events, spanning a several year period that
the Board considered neither repetitive nor persistent.
[18]
In assessing the Applicant’s claim of
persecution, the Board was of the opinion that there were irregularities in the
Applicant’s narrative which the Board determined pointed to a lack of
subjective fear of persecution. For instance, although he specified a fear for
his life as a Christian in a predominantly Muslim community, the Board reached
the conclusion that, nevertheless, the Applicant did practice his religion for
nearly 10 years, as he attended a (house) church regularly (where a pastor
would come to officiate). The Board took the view that discrepancies existed between
the Applicant’s documentary evidence and oral testimony with regard to his
religious activities between 2000 and 2009 (Record of Hearing of April 2, 2012
at pp 16-18). (A careful reading demonstrates that a misunderstanding may have arisen
in that the Applicant specified he distributed brochures in respect of his
Christian faith that were considered to be of a missionary nature in 2009, and,
not in 2000 when he was a simple adherent.)
[19]
The Board also considered the Applicant’s delay
in seeking asylum in determining the well-foundedness of his subjective fear.
The Board determined that the Applicant’s delay in leaving Turkey was
unreasonable, as, it did also in regard to his subsequent delay in seeking
refugee status in Canada after having left his country. The Applicant arrived
in Canada as a seaman in Quebec City on November 17, 2010 subsequent to which
he took a bus to Toronto and filed his refugee claim on November 30, 2010 only after
he left the crew of his ship, or only after he was able to leave the crew of
his ship.
[20]
The Board ultimately found that the Applicant
lacked both a subjective and an objective fear of persecution. In its reasons,
the Board made specific reference to its above-noted concerns, as well as the International
Religious Freedom Report 2010 [IRFR] (Certified Tribunal Record [CTR] at p 72)
which states that by 2010 “Christians and Baha’is engaging in religious
advocacy were occasionally threatened or pressured by government and state
officials” but that “the government generally respected religious
freedom in practice” [Emphasis added].
[21]
The Board decided to give only specifically
chosen, selected documentary evidence considerable weight, finding no objective
fear of persecution as opposed to discrimination which is discussed
subsequently below.
Political
grounds
[22]
The Board’s analysis concluded that the
Applicant’s alleged persecution on grounds of political affiliation with the
EMEP, was based on its finding of insufficient evidence for the Applicant to fear
persecution by police.
[23]
According to the Board, the Applicant’s alleged
detention and torture during the May Day Rally of 2008 – that is the incident
raised in the Applicant’s narrative in regard to his political activities –
resulted from the Applicant’s own participation in general demonstrations and
not necessarily due to his association to the EMEP. The Board concluded that no
evidence existed that the police would have known of his membership in the
EMEP. In the Board’s view, the evidence demonstrated to it, that the Applicant
had no political profile by which he would be a person of interest to the
police; according to the Board, he was simply a member of the party with no
titled position.
[24]
The Board concluded that it was not plausible
that the event specified by the Applicant was related to the Applicant’s
membership in the EMEP; and, thus, the Applicant’s alleged fear of persecution
by the police was based on his political activities which, according to the
Board, remained unfounded.
IV. Issue
[25]
Did the Board err by misconstruing or ignoring
evidence in its findings?
V. Relevant
Legislative Provisions
[26]
The following legislative provisions of the IRPA
are relevant:
|
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
Person in need of protection
(2) A person
in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
|
Définition de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
VI. Standard of
Review
[27]
The standard of review applicable to the Board's
findings on credibility and subjective fear is that of reasonableness (Kaur
v Canada (Minister of Citizenship and Immigration), 2012 FC 1379).
[28]
To satisfy a reasonableness standard, a decision must
fall in the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47).
[29]
The Court only intervenes in a credibility finding if the
first instance, trier of fact, bases its decision on “an erroneous finding of
fact made in a perverse or capricious manner or if it made its decision without
regard to the material before it” (Aguebor v Canada (Minister of Employment
and Immigration) (1993), 160 NR 315, 42 ACWS (3d) 886 (FCA)).
VII. Position of the Parties
[30]
The essence of the Applicant’s argument is that the
Board committed a reviewable error by misconstruing and ignoring evidence in
its assessment of credibility and subjective fear; namely, that of the
documentary evidence related to membership in the EMEP and the Christian
church, as well as that of the medical reports in support of the alleged
incidents involving the police.
[31]
The Respondent submits that the Board considered the
totality of the evidence in its findings on the Applicant’s credibility and
subjective fear.
VIII. Analysis
[32]
The Board did not find that the point-specific documentary
evidence with regard to the Applicant’s membership to the Christian church, to
the EMEP or to the medical reports had probative value by which to assess the
well-foundedness of the Applicant’s alleged fear of persecution.
[33]
With regard to the Applicant’s claim of persecution
based on religious grounds, the Court considers that the Board was unreasonable
in its finding that the Applicant lacked a subjective fear of persecution. The
Board drew a negative inference from the Applicant’s ten-year delay in seeking
asylum and his repeated re-availment to Turkey (Rengifo v Canada (Minister
of Citizenship and Immigration), 2010 FC 1177; Kabengele v Canada
(Minister of Citizenship and Immigration) (2000), 197 FTR 73).
[34]
Although the jurisprudence is clear that a delay is not
always determinative in a refugee claim, it may be a significant factor in
determining a lack of subjective fear of persecution if explanations do not
demonstrate otherwise. The Applicant stated that he had lost several members of
his family and he did not want to leave even though his child was taken care of
by its mother. (That matter was not adequately canvassed by the Board as no
conclusive comment is made thereon by the Board in its decision, other than to
infer lack of credibility.)
[35]
This Court also finds that the Board's conclusions on
the Applicant’s lack of subjective and objective fear were insufficient when
read in respect of the totality of the transcript and written narrative when viewed
in context. Without further questioning, more is unknown than is known on this
matter, as key information in potential responses was not solicited due to a
lack of pertinent questioning on the subject, questioning which needed to be
conducted in an atmosphere conducive to such questioning. Although the hearing
went on for two days, key elements concluded upon were unclear leading to a
lack of reasonableness.
[36]
Although the IRFR report states that, in 2010, members
of minority religious groups did, themselves, report that “they had freedom to
practice their faith”, that must be examined on a case by case basis as to
specific facts and in context as to activities undertaken by minority religious
groups. Improvements were not necessarily witnessed in several areas as
specified in contrary objective documentation presented by the Applicant.
[37]
Certain reports clearly point to societal persecution,
both of a verbal and physical abuse variety against religious groups, the
documentary evidence indicates that incidents were directed against all
minority religious groups, not only Christians. (Does it make it better,
or can it be considered evolutionary for the enhancement of human rights that the
abuses were now generalized to all groups rather than one group, which
demonstrates that there is no distinction as to who is targeted amongst all minority
groups; therefore, all are considered to be subjects of such.) The Applicant’s
own testimony bears this out (Record of Hearing of April 2, 2012 at p 18).
[38]
The Board cited the following in support of its
reasoning, in 2010, although “[m]any members of the public viewed religious
pluralism as a threat to Islam and to ‘national unity’” [emphasis added],
religious minority groups were, in a limited fashion, permitted to establish
new religious community foundations as well as to reopen foundations which previously
had been closed; and they could seek returns, or compensation on the basis of foundations
which had been confiscated by the state authorities in previous decades. These were
considered to be improvements; however, the ultimate pragmatic outcome is still
yet to be witnessed in regard to protection of religious freedoms in Turkey;
and, as yet, they are not indicative of a state that can be said to protect
rights. Serious abuse and persecution still continues unabated as is evident on
reading the documentary country condition evidence on a non-selective basis, if
read in comprehensive context. (It is to be noted that other than mainstream
Turkish religious group minorities constitute less than one percent of the
country’s population. The Exhibit – U.S. Department of State Report of
November 17, 2010.)
[39]
The facts of this case do appear to reflect a failure
of state protection and a conceivable pattern of systematic violence based on
religion and political grounds for this Applicant on his specific evidence and
grounds when he does anything in public view rather than worship in a house
church he attended; this holds true, also, with regard to the Applicant’s specific
claim of persecution on political grounds as well as that of his alleged
religious grounds as to his Christian Protestant faith and practice. (See
objective evidence thereon, for example, on file, entitled “A threat” or under
threat, Legal and Social Problems of Protestants in Turkey, 2010, by the
Association of Protestant Churches Committee for Religious Freedom and Legal
Affairs, where it is specified that Protestant denominations remain vulnerable
in Turkey. See, also, Exhibit “A Ecumenical Patriarch on Christian Persecution
in Turkey, December 23, 2009, www.catholics
org.; reference is also made to the Exhibit entitled “Religious Freedom Survey,
2009, re “Serious Violations of Human Rights”.)
[40]
It is fully recognized, as stated in Chan v Canada
(Minister of Employment and Immigration), [1995] 3 S.C.R. 593, for
mistreatment to be considered “persecution”, it must meet two criteria: it must
be serious and it must be repetitive or systematic. Harassment or
discrimination are not, in and of themselves, sufficient for such. Moreover, mistreatment
must be truly demonstrative of “state protection” (Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689 at para 63). In the case of the Applicant, each
time he was detained by the authorities or the victim of societal abuse, the
situation appeared otherwise as it was serious and of peril to his person as
per uncontradicted specific evidence.
[41]
Upon reviewing all of the evidence in the CTR and the
submissions of the parties, this Court is persuaded that the Board erred in its
conclusions with regard to the Applicant’s subjective and objective fear of
persecution by having ignored the evidence that must be adequately demonstrated,
at least, to have been taken into account to reach any decision. As a specialized
tribunal and finder of fact, the Board must, in some manner, account for pertinent
evidence in respect of a specific applicant bearing specific evidence, and not
assess in a generic nor amorphous manner, out of context.
[42]
The Board unsatisfactorily assessed and weighed the
evidence, both, the personal evidence of the Applicant and the documentary
evidence. Thus, it is not for this Court but only for the specialized tribunal
as a finder of fact to ensure that its mandated jurisdiction is carried out
according to its expertise with the evidence to bear such out. The Board’s
findings were unjustified by the weight it accorded to the evidence without a more
substantial in-depth and breath analysis, even if only briefly commented
upon, or even merely alluded to, in a more directed manner, so as not to
disregard pertinent evidence in its contextual setting.
[43]
It is incumbent on the Board, as a result, to examine
the (personal) subjective and objective evidence of the Applicant in his oral
testimony and written materials which include five uncontradicted arrests,
detentions and incidents of violence imposed on his person, none
of which evidence had been specifically discredited in the reasons of the Board
as per the comprehensive evidence on file. Numerous objective documentary
elements of evidence pointed out by the Applicant simply remained wholly ignored.
[44]
The potential cumulative effects of the incidents were not found, in and
of themselves, to lack credibility. They may, in fact, point to accumulated
effects; this, too, needs specific analysis by the Board. Specific evidence
from the church, political party and medical reports were discounted without any
due explanation by the Board. This evidence may, in fact, have a cumulative
effect, if credible.
[45]
The delay in respect of the actual claim for refugee status was
explained by the Applicant. To be discounted by the Board, it too would have
had to have been, at the very least, discussed in specific measure based on the
Applicant’s answers on file.
[46]
In conclusion, the oral testimony of the Applicant cannot simply be
discounted if it is not contradicted by the Personal Information Form [PIF] nor
lacking in inherent logic with the PIF.
[47]
It is not incumbent on the Board to write long explanations for such
subject-matter but it must address such; otherwise, the reasons can be said
to be improperly motivated, lacking adequate assessment of what appears to be
pertinent evidence. It is reiterated by the Court that the how and what, when
reached by the Board’s eventual reasoning, is for the Board, itself, to
determine as a specialized tribunal; that is for the specialized finder of fact
to do but the key uncontradicted evidence must, at the very least, be addressed.
IX. Conclusion
[48]
For all of the above reasons, the Applicant’s
application for judicial review is granted and the matter is returned for determination
anew (de novo) by a different member of the Board.
Email this Content