Date: 20040127
Docket: IMM-301-03
Citation:2004 FC 128
Ottawa, Ontario, this 27th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
Kemal Yorulmaz
Applicant
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally in Toronto on January 26th 2004
and subsequently written for precision and clarification)
[1] The applicant's four points cannot succeed for the following reasons.
[2] The Applicant is an assimilated Kurd who speaks hardly any Kurdish, was completely educated in the Turkish school system, completed his Turkish military service and has travelled in and out of Turkey. The Board's finding in this regard were reasonable and consistent with the British Home Office report to which it referred in its Reasons.
[3] The Board's negative credibility finding was substantiated by the facts. It was not unreasonable to conclude that a person would not return to Turkey if he had previously been blindfolded, beaten, sprayed with cold water and threatened with death. The fact that the applicant did so undermined his credibility and put his testimony in doubt.
[4] The applicant claimed that he was nearly run over by a truck in July. According to the applicant, it was this event that triggered his leaving Turkey. Yet he stayed until October, awaiting a US and a Canadian visa before leaving, notwithstanding that he had a "Schengen Visa" with which he could have left the country at any time. The Board did not unreasonably conclude that this issue put the veracity of his testimony, particularly his fear from the authorities, in doubt.
[5] The organisation to which the Applicant belonged, the Celadami Solidarity Association (CSA), was a cultural not a political organisation. The British Home Office report and the US Department of State report both indicate that Kurdish cultural organisations are tolerated in Turkey, albeit grudgingly. On the basis of that evidence and based on the applicant's own testimony that the organisation was cultural and not political, the Board had enough evidence to make the statement " the panel is not satisfied that the claimant would be persecuted because of his ethnicity, religion, or his association with the cultural organization, Celadami Solidarity Association." (Applicant's Record, page 11)
[6] As far as the panel's alleged failure to consider section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) is concerned , I find that the case of Bouaouni v Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540 is directly on point. At paragraph 42 of that judgement, Blanchard J. stated
In the present case the Board found important omissions, contradictions and implausibilities in the applicant's evidence, which led it to conclude that the applicant's story was not credible. I have already determined that these findings were open to the Board. The Board specifically disbelieved the applicant's allegation of arrest, detention and torture by the police forces and provided detailed reasons for its findings. Further, the Board showed an appreciation of the country conditions in Tunisia and specifically considered, in its reasons, the country documentation before it. There is no evidence to suggest that the Board failed to consider evidence before it or that it misapprehended any aspect of the evidence. Apart from the evidence that the Board found to be not credible, there was no other evidence before the board in the country documentation, or elsewhere, that could have led the Board to conclude that the applicant was a person in need of protection. I find that the Board did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the Board's conclusion, that the applicant was not a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence.
This reasoning applies equally to the case at hand.
[1] Accordingly this application is dismissed.
ORDER
THIS COURT ORDER'S that:
1. This application is dismissed.
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-301-03
STYLE OF CAUSE: KEMAL YORULMAZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY JANUARY 26, 2003
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN, J.
DATED: JANUARY 27, 2004
APPEARANCES BY:
Mr. Micheal Crane
For the Applicant
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD:
Mr. Micheal Crane
Barrister & Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent