Date: 20040811
Docket: IMM-6176-03
Toronto, Ontario, August 11th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
BARIS ERTURK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Erturk is a 26-year-old Alevi Turk who claims to be a Convention refugee or a person in need of protection on the basis of religion, political profile, and being a conscientious objector to compulsory military service.
[2] The Refugee Protection Division (RPD) of the Immigration and Refugee Board concluded that being an Alevi, without more, was insufficient to warrant protection. It found Mr. Erturk to be not credible on a number of issues regarding his university experiences and other activities in Turkey and it determined that he had failed to establish that he would be of interest to authorities. Regarding conscientious objection, the board concluded that Mr. Erturk did not flee Turkey because of a fear of conscription, but because he wanted to study abroad. With respect to his draft evasion, his fear was of prosecution, not persecution.
[3] Mr. Erturk challenges two of the board's credibility findings on the basis that they are patently unreasonable. He also attacks the "conscientious objection" determination on two fronts. First, he submits that the RPD failed to properly analyze the basis of this claim. Second, and irrespective of the first submission, the board failed to take into account the treatment he would face as a draft evader if returned to Turkey. In relation to the latter argument, he refers to Bakir v. Canada (Minister of Citizenship and Immigration) (2004), 33 Imm. L.R. (3d) 171 (F.C.) (Bakir) and submits that the board's decision must be set aside on the basis of that authority.
[4] In Bakir, Mr. Justice Blanchard, at paragraph 32, stated:
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.
[5] Mr. Erturk notes that the RPD, in determining that he would not be subjected to cruel and unusual treatment or punishment in Turkey, relied on the report from the Dutch Ministry of Foreign Affairs and failed to expressly consider other reports that were before it. Thus, he says, Bakir is dispositive.
[6] I agree with Mr. Erturk that if Bakir applies, the decision of the board is flawed. The respondent, however, maintains that Bakir is distinguishable.
[7] Justice Blanchard, at paragraphs 33-35 of Bakir, went on to state:
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.
The Federal Court of Appeal (sic) 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.
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.
He concluded that the decision was made without regard to the evidence. Consequently, the board erred in law.
[8] The respondent contends that on its face Bakir does not apply. This is so because, there, the applicant was Kurdish, not Alevi. The respondent submits that an examination of paragraph 33 of the Reasons in Bakir reveals that it was the applicant who tendered the Amnesty International Reports and that it is clear that the reports referred to Kurdish citizens. Moreover, says the respondent, Mr. Erturk's counsel before the RPD (not counsel on the judicial review) did not refer to the Amnesty International Reports; he referred to the U.K. Home Office Report.
[9] I agree with the respondent that at least portions of the documentary evidence in Bakir refer to the treatment of Kurds. However, paragraph 33 of the Reasons also references punishments for "those who continually refuse to serve in the Turkish military". Justice Blanchard observed that the reports "provide reliable evidence of severe judicial and extra judicial persecution of those who evade military service".
[10] The Amnesty International Report 2002 was before the RPD. There is no indication that regard was had to it. More compelling in relation to the respondent's position, however, is the reference at paragraph 4.32 of the U.K. Home Office Report that states:
Ethnic origin plays no role in determining the sentences for evasion of military service.
[11] I am unable to distinguish Bakir and will allow the application. Counsel did not suggest a question for certification and none is certified.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted panel of the RPD. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6176-03
STYLE OF CAUSE: BARIS ERTURK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 11, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY:
Mr. Alex Billingsley FOR THE APPLICANT
Ms. Kareena Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cintosun & Associate
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040811
Docket: IMM-6176-03
BETWEEN:
BARIS ERTURK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER