Date: 20040119
Docket: IMM-5709-02
Citation: 2004 FC 70
Ottawa, Ontario, this 19th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ESREF BAKIR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rendered October 24, 2002, wherein the Board determined that the applicant was not a Convention refugee or a person in need of protection.
Background
[2] The applicant is a 25-year old Kurdish citizen of Turkey. He claims a well-founded fear of persecution due to his political opinion and seeks protection on the basis of his involvement with a social/political club called "The Brotherhood Group." This 15-person group of Kurds and non-Kurds met every two months to discuss the situation of Kurds in Turkey. He also claims entitlement to protection as a conscientious objector.
[3] The applicant fled Turkey because he objected to serving in a military regime that was responsible for the evacuation of Kurdish villages and the torture and killing of Kurdish villagers. As well, he claims that as a conscientious objector he is at risk of imprisonment and torture if he is returned to Turkey.
[4] The applicant also fled Turkey because he feared persecution due to his political beliefs as an advocate for Kurdish rights. The applicant joined the Brotherhood Group while in university, and he claims that the group was subject to attack by "ULKUCU, the ultra right nationalists," who were also active at the university. The applicant alleges that members of their club frequently received threatening phone calls. The unidentified callers would threaten violence if the club members continued to question the system or State.
[5] In May 2000, the club held a meeting at the university to discuss problems in the South East of Turkey. Security forces interrupted the meeting and arrested approximately 15 people, including the applicant. The applicant claims that he was taken to a military station where he was questioned, assaulted and held for three days. The applicant claims he was informed that he had been under surveillance for some time and that he would be fixed once and for all when he did his military service. After the arrests, the club was closed down by the University, and members ceased to meet.
[6] The applicant completed his education at the university and was told on completion that he would have to report for military service in November 2001. Due to his past treatment by security forces and his objection to serving in the Turkish military, the applicant fled the country to the United States where he had been accepted in a language school. He obtained a passport and a United States student visa and entered Canada via the United States. The applicant claimed refugee status as soon as he arrived at the Canadian border on April 23, 2001.
Board's Decision
[7] The Board held that Esref Bakir did not have a well-founded fear of persecution in Turkey because of his Kurdish nationality and his political opinion and found that he was not a Convention refugee. The Board also held that the applicant was not a person in need of protection as there were no substantial grounds to believe that he would be personally subjected to danger of torture, risk of life, or cruel and unusual treatment in Turkey.
[8] Firstly, in relation to the applicant's claim of a fear of persecution due to past political activity, the Board noted that the applicant's political involvement with the Brotherhood Group and his stated hopes to improve human rights conditions were "vague and not acted upon." The group of fifteen met once every couple of months for discussions but had not produced any newsletters or printed materials and had stopped meeting immediately upon their alleged arrests. The Board found that the applicant was not involved in any political activity and had no political profile. The Board noted that there were no further incidents of harassment by police or State officials after the alleged arrests and closing of the club, and that the applicant continued on with his life, receiving a university degree and applying to a language school in the United States. The Board also noted that since his arrival in Canada he had not been active in the Kurdish community, though he stated his desire to start a newsletter or group in the future.
[9] The Board did not consider the alleged arrest to constitute persecution due to political belief. As well, the Board gave no weight to the applicant's claim of threatening phone calls from unknown persons as neither the source nor the intent of the phone calls were sufficiently explained. Finally, the Board did not think the applicant fit the profile of a Kurd who would face harassment or persecution as he was not a member of any group that would mark him as an activist. Consequently, the Board did not find that Esref Bakir had a well-founded fear of persecution in Turkey due to his political opinion.
[10] Secondly, the Board did not find that the applicant would be personally subjected to danger or torture due to his evasion of military service. Documentary evidence considered by the Board stated that military judges generally imposed minimum sentences that could be commuted to fines to be paid at the end of military service. As well, there was documentary evidence to support that the military atrocities the applicant refused to participate in, namely, those resulting from armed conflict in South-East Turkey, were quite rare and had virtually ceased. The Board also noted that there were a number of provisions in place to allow the military service to be deferred, such as, for educational purposes. The Board noted that it has been generally acknowledged by the Court that neither compulsory military service nor alternate service provisions are persecutory; Popov v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 93. Finally, the Board found that the applicant was not a conscientious objector and did not find the applicant's evasion of military service to be a relevant motive for leaving his country or fearing persecution.
Issues
[11] The applicant raises two issues on judicial review:
A. Did the Board err in law in determining that the applicant had not been, and would not be, persecuted in Turkey for his political beliefs or activities?
B. Did the Board err in determining that the applicant was not entitled to protection as a conscientious objector?
Standard of Review
[12] The determination of the applicant's risk of persecution is a factual issue and should be afforded a high degree of deference by the Court. The Supreme Court acknowledged in Pushpanathan v. M.C.I., [1998] 1 S.C.R. 982, that the Refugee Division is a Board specialized in the assessment of risk of persecution, and that such determinations are factual in nature. It is generally accepted that the standard of review applicable to findings of facts is that of patent unreasonableness. I will therefore apply the standard of patent unreasonableness to the first issue.
[13] The second issue, involves the Board's assessment and conclusion with respect to the applicant's claim as a conscientious objector. In the context of this case, the issue raises a question of mixed law and fact. The standard of review applicable on questions of mixed fact and law is generally reasonableness simpliciter.
Analysis
A. Did the Board err in determining that the applicant had not been, and would not be, persecuted in Turkey for his political beliefs or activities?
[14] The applicant submits that the Board erred in three significant instances in its determination that the applicant had not been, and would not be, persecuted in Turkey for his political beliefs, or previous affiliation with the Brotherhood Group.
[15] Firstly, it erred in applying a western liberal democratic standard to the interpretation of what constitutes political activity, ignoring evidence that discussions about human rights and political injustice attract severe reprisals from the State, and determining that the applicant merely engaged in philosophical discussions. The Board did not deny that the applicant was arrested, detained and beaten in connection with his group and in light of this evidence as well as the Board's own findings, the applicant submits that the board erred in determining that he was not a member of a group that would mark him as an activist. The applicant contends that the crucial test, as stated in Oyarzo v. Canada, [1982] 2 F.C. 779 at 783 on line: QL, is not whether the Board considers the applicant's actions to be political, but if the Turkish government would view it as such. As the documentary evidence and personal evidence indicates that the Turkish state viewed the applicant's action as political, the applicant contends that the Board erred in failing to properly consider the evidence.
[16] On this issue, I am essentially in agreement with the respondent's submission. It was within the Board's discretion to determine that the applicant's membership in this group would not make him a target for persecution by the Turkish authorities. As this is a question of fact, the Court should show considerable deference to the Board's determination. The Board considered evidence that Kurds who assert their Kurdish identity could have grounds to fear persecution, but noted that at the time of the hearing, the applicant was not a member of a political, or philosophical group of any kind. Based on the evidence, the Board reasonably determined that the applicant did not fit the profile of a Kurd fearing persecution. The Board found that the applicant's past membership in his 15 member club was not sufficient to establish a fear of persecution, and though the Board acknowledged that Kurds in Turkey often did face persecution, it found that the applicant did not establish a nexus between his personal situation and a Convention ground. I am of the view that this finding was reasonably open to the Board.
[17] Secondly, the applicant submits that the Board ignored relevant evidence in determining that no weight could be accorded to the harassing phone calls the applicant and his family had received. Despite the applicant's depiction of frequent phone calls in which callers would threaten death if the applicant continued to question the political system, the Board gave no weight to this testimony on the grounds that neither the source nor the intent of the alleged phone calls was explained. The applicant submits that the source and interest of the calls were explained and that the Board either overlooked this evidence or made a perverse finding of fact. Furthermore, the applicant contends, if the Board was unhappy with the sufficiency of the applicant's written evidence, it was obliged to put their concerns to the applicant and give him an opportunity to know the case to be met, which it did not do. The applicant argues that, by failing to do so, the Board committed a reviewable error.
[18] I am of the view that it was open to the Board to assess the evidence presented by the applicant with respect to the phone allegations, and to assess and weigh this evidence. The Board determined that the applicant had not sufficiently demonstrated that the calls took place or were related to his political activities or opinions. I find, based on the evidence, that this determination is not patently unreasonable.
[19] Thirdly, the applicant submits that the Board erred in determining that the treatment the applicant was subjected to while in custody was not sufficiently serious to render him a person in need of protection. It is submitted that the Board applied too restrictive an interpretation of the term persecution, and that implicit or explicit threats to a person's integrity, where linked to a Convention ground, can sustain a well-founded fear of persecution. As the Board accepted that the applicant had been arrested, interrogated, beaten and warned that he would be fixed once and for all when he completed his military service, the Board erred in finding such treatment was not sufficiently serious to qualify as persecution.
[20] I am in agreement with the respondent on this issue. It was within the Board's discretion to determine that the applicant did not have a valid fear of persecution by Turkish authorities due to his political opinion, and I find that the Board's negative decision is not patently unreasonable. The Board acknowledged evidence that Kurds who assert their Kurdish identity could have grounds for persecution, but it was not satisfied on the evidence that the applicant was such an individual. The Board noted that the group had dissolved upon the day of their alleged arrest, that the applicant had not been subjected to any further harassment from police, and that the applicant was not a member of any political group at the time of his application. As well, after the alleged arrest and closing of the club, the applicant remained in Turkey for over a year to complete a university degree. This is hardly the profile of an individual fearing persecution for his political opinion.
[21] I am therefore of the view that the Board did not err in determining that the applicant had not been, and would not be, persecuted in Turkey for his political beliefs or activities or affiliation with the Brotherhood Group.
B. Did the Board err in determining that the applicant was not entitled to protection as a conscientious objector, or would not be a person in need of protection due to the evasion of military service?
[22] The applicant submits that the Board made two additional errors; the first in reference to its conscientious objection determination, and the second in reference to its assessment of the possible judicial and extra-judicial repercussions of evading military service in Turkey.
[23] Firstly, the applicant contends that the Board erred when it determined that the applicant was not a conscientious objector due to his particular as opposed to general objection to bearing arms. The Board determined that as the applicant was opposed to serving in the Turkish army, but was not adverse to serving in the Canadian military, that he was not a conscientious objector, but merely objected to performing his military service. The applicant submits that jurisprudence supports the proposition that a person need not be an absolute pacifist to be recognized as a conscientious objector, as specific objections to military service in a particular conflict or operation have been recognized as sufficient. The applicant argues that this is especially so when military actions, such as those incursions in the south-east of the country by the Turkish military, have been condemned by the international legal community as contrary to basic rules of human conduct (See Re Zolfagharkhani v. Canada, [1993] 3 F.C. 540, [1993] F.C.J. 584, on line: QL). It is submitted that the applicant is a conscientious objector and the Board erred in law in determining otherwise.
[24] The respondent submits that the Board properly considered the fact that the applicant testified he would be willing to serve in the Canadian military. As the evidence clearly shows that he would be willing to serve in another military, he did not fall within the category or definition of conscientious objector (See Tkachenko v. M.E.I., [1995] F.C.J. No. 474). The respondent also submits that the Board reviewed documentary evidence on armed confrontations in the south-east of Turkey which verified that such conflict had virtually ceased since the end of 1999. As such, the Board found that there was no objective basis for the applicant's assertion that he would be required to commit acts against his people, or that he was a conscientious objector.
[25] Secondly, the applicant submits that the Board erred in determining that the punishment the applicant would be subjected to as a draft evader would not render him a person in need of protection. The applicant submits that the Board erred in failing to take into account evidence of judicial punishment amounting to life imprisonment for those who continually refuse military service as well as evidence of extra judicial punishment of conscientious objectors in Turkey.
[26] The applicant submits that in order to determine whether the punishment for refusing military service is unduly severe, the Board must consider not only the applicant's fear of judicial punishment, but also his fear of extrajudicial punishment for draft evasion (See Padilla v. Canada, [1991] F.C.A.D. 1498-01). In its reasons, the Board based its conclusion on evidence from the Dutch Ministry depicting the judicial treatment of those charged with evasion of military service. The report shows military judges imposing minimum sentences and particularly that prison sentences for evasion "...are generally commuted into fines which must be paid after the end of military service." The Board did not acknowledge other reports that dealt with both the judicial and extra-judicial treatment of those who refused to serve in the Turkish military. Those reports reveal that harsher treatment is reserved for those who evade military service. The applicant further submits that when a person's objection to military service is due to actions that have been condemned by the international community, as contrary to basic rules of human conduct, any punishment for refusal to perform military service is inherently persecutory (See Zolfagharkhani, supra). In consequence, the applicant asserts that even if the Board did not err in determining that the maximum judicial sentence would be a short prison term, it still erred in determining that the applicant was not a person in need of protection, as even a short prison term would be unwarranted and persecutory.
[27] The respondent submits quite simply that the court has generally acknowledged that compulsory military service, as well as alternative service, are not inherently persecutory (See Popov, supra).
[28] In its reasons for decision, the Board appears to find that the applicant is not a conscientious objector because he is not an absolute pacifist. At page 9 of its reasons, the Board wrote:
"...based on the claimant's admission that he would "fight for a country that respects human rights," I do not find that the claimant is a conscientious objector, rather I find that he objects to performing his military service."
[29] The applicant stated that he objects to serving because he does not want to be forced to participate in the military's atrocities personally. Given the Turkish Army's record, and the possibility of ongoing operations in the south-east of Turkey, he felt that any involvement would make him complicit in its actions even if he were not required to directly take part in human rights atrocities himself.
[30] The Federal Court of Appeal in Zolfagharkhani, supra, established that an individual need not be an absolute pacifist or express opposition to all armed services in order to warrant recognition as a conscientious objector to military service. Where the military action at issue has been condemned by the international legal community as contrary to basic human rights, the Court has reasoned that selective objection to military service in a particular conflict or military operation, for reasons of conscience or profound conviction, should be recognized as conscientious objection.
[31] By framing its conclusion as it did, I am left to infer that the Board did not appreciate and did not properly apply the test established by the Court of Appeal in Zolfagharkhani, supra. In finding that the applicant was not a conscientious objector because he would "fight for a country that respects human rights", the Board essentially required that the applicant express opposition to all armed services in order to be recognized as a conscientious objector. This is clearly not the test enunciated by the Court of Appeal in Zolfagharkhani, supra. In consequence, the Board erred in misapplying the test. However, for the following reasons, I do not find this error to be material in the final analysis. In my view, even if the Board had applied the proper test, there is insufficient evidence to support the applicant's contention that the "military atrocities" he alleges are currently being committed in south-east Turkey by the Turkish military. Put differently, there is insufficient objective evidence to support the contention that the military operations and atrocities which form the basis of the applicant's objection to serve are currently being carried out or committed by the Turkish military. Though there is evidence of sporadic conflict in the south-east, there is also evidence that the Turkish government is attempting to re-build and re-settle south-east Turkey. The Board reviewed documentary evidence which verified that conflict in the south-east of Turkey had virtually ceased since 1999. As reliable evidence demonstrates that fighting has greatly lessoned in the south-east, and efforts are being made to return citizens to their villages. Consequently, it is not unreasonable for the Board to conclude that there is no objective basis for the applicant's fear of being called on to commit acts against his people, and that the applicant had not established a foundation for conscientious objection.
[32] I am, however, in agreement with the applicant's submission that the Board erred in determining that the punishment the applicant would be subjected to as a draft evader would not render him a person in need of protection. In its assessment of the severity of the punishment for evasion of military service in Turkey, the Board relied only on documentary evidence from the Dutch Ministry of Foreign Affairs. As noted by the applicant, the Board failed to expressly consider other reports which were before it and which describe a far more severe judicial and extra-judicial treatment of those who evade military service in Turkey.
[33] The applicant provided several pieces of documentary evidence from Amnesty International that depicted a possible chain of prison terms for those continuing to refuse to serve in the military, and extra judicial punishments such as the torture and detention of conscientious objectors upon their return to Turkey. At pages 198 to 212 of the Tribunal Record, evidence from Amnesty International depicts increased reports of extra-judicial persecution and lengthy and brutal detention periods for Kurdish citizens who are returned to Turkey after leaving to avoid military service and seek political asylum abroad. As well, there are reports of a number of mysterious deaths of Kurdish men who agreed to serve in the military after a previous objection to military service. At page 200 of the Tribunal Record, another Amnesty International report draws attention to the possibility of a chain of prison sentences amounting to life imprisonment for those who continually refuse to serve in the Turkish military. These reports provide reliable evidence of severe judicial and extra judicial persecution of those who evade military service. The Board did not acknowledge this evidence in its reasons for decision.
[34] The Federal Court of Appeal in Cepada-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, stated at paragraph 17 that the more important the evidence that is not mentioned specifically and analysed 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. Given the importance of the reports, in that they contain information that is material and which supports a contrary conclusion to that reached by the Board, it is information that should have expressly been dealt with in the reasons. Having failed to do so, I find that the Board made its decision without regard to this evidence.
[35] The evidence in question is not only relevant and points to a conclusion contrary to that reached by the Board, but is also evidence that emanates from a reliable and independent source. The Board erred by ignoring this evidence.
Conclusion
[36] In the circumstances, the Board's finding that the punishment the applicant would be subjected to as a draft evader would not render him a person in need of protection, is a decision made without regards to the evidence. In consequence, the Board committed a reviewable error of law.
[37] For the reasons set out above, the application for judicial review will be granted and the matter is referred back for redetermination by a differently constituted panel of the Board.
[38] Neither party proposed a question for certification. No question of general importance will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board rendered October 24, 2002, is granted.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5709-02
STYLE OF CAUSE: ESREF BAKIR v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 23, 2003
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
DATED: January 19, 2004
APPEARANCES BY:
Ms. Catherine Bruce For the applicant
Ms. Catherine Vasilaros For the respondent
SOLICITORS OF RECORD:
Catherine Bruce & Associates
Toronto, Ontario For the applicant
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT
Docket: IMM-5709-02
BETWEEN:
ESREF BAKIR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER