Ottawa, Ontario, November 9th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the Board) dated December 14, 2004 which found the applicant not to be a Convention refugee or person in need of protection, and in any event, was found to be excluded from protection under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (Convention).
FACTS
[2] The applicant claims a well-founded fear of persecution at the hands of Turkish authorities on Convention grounds of political opinion and religion.
[3] The applicant was a career Non-Commissioned Officer (NCO) of 10 years service from 1987 to 1997 in the Turkish Gendarme. Before the Board, the applicant testified he and his wife were victims of a secularist military crackdown on the apprehended infiltration of religious Islamists into the military. Specifically:
i. in January and February 1997, he was detained for reasons relating to his religious practices, culminating in imprisonment and dishonourable discharge from the military;
ii. on his release in 1998, he moved to Sakarya province, where he was employed in a factory owned by members of the Nur Jamaat;
iii. in 1999 the applicant's wife, a practicing Muslim, was threatened she would lose her job as a nurse because she wore a hijab;
iv. in 2000, he and other factory employees were threatened by the military because of their religious beliefs; and
v. when the military learned of the applicant's relation to his wife, they were both accused of conspiring to undermine the secular status of Turkey.
[4] On July 14, 2001 the applicant and his wife fled Turkey, believing that if they remained they would be arrested, tortured, or killed outright by the military because of their religious practices. On July 19, 2001 they arrived in Canada via the United States, and made an inland claim for refugee protection on July 23, 2001. On September 21, 2002 the applicant's wife withdrew her claim and returned to Turkey.
[5] The Board rejected the applicant's claim for refugee protection for two reasons. First, it found the applicant was excluded from being considered a Convention refugee or person in need of protection because of complicity by association with crimes against humanity committed by the Gendarme within the meaning of Article 1F(a) of the Convention. Second, it found the applicant had no well-founded fear of persecution in Turkey on Convention grounds. The Board found the applicant's testimony was not credible on questions of both exclusion and inclusion. On exclusion, the Board found much of the testimony implausible and the result of an attempt to distance himself from atrocities committed by the Gendarme. On inclusion, the Board found inconsistency both internally and to objective documentary evidence, irreconciled implausibilities, and the knowing disclosure of fraudulent military documentation.
RELEVANT LEGISLATION
[6] The relevant legislation is as follows:
Section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") provides:
| 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention Refugee or person in need of protection. |
98. La personne visée aux sections E ou F de l'article premier de las Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
Article 1F(a) of the United Nations Convention Relating to the Status of Refugees provides:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
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F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura les raisons sérieuses de penser:
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes.
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ISSUES
[7] The two issues raised in this application are as follows:
1. Did the Board err in concluding that the applicant was excluded from refugee protection by operation of Article 1F(a) of the Convention?
2. Did the Board err in finding that the applicant did not have a well-founded fear of persecution in Turkey by reason of drawing an adverse finding of credibility and implausibility?
To succeed on the review at bar, the applicant must demonstrate that the Board erred on both issues, since each issue independently disentitles him from refugee protection.
ANALYSIS
Issue No. 1: Did the Board err in concluding that the applicant was excluded from refugee protection by operation of Article 1F(a) of the Convention?
[8] The test for exclusion is whether it can be shown there are "serious grounds for considering" that crimes against the peace, war crimes, or crimes against humanity were committed for which the applicant is accountable (Zrig v. Canada(Minister of Citizenship and Immigration)(2003), 307 N.R. 201 (F.C.A.)). It need not be shown that the applicant in fact committed such crimes. It is sufficient to show that he was complicit in their commission by an organization (Sivakumar v. Canada (Minister of Employment and Immigration) (1993), 163 N.R. 197 (F.C.A.)). The test for complicity is whether there is personal and knowing participation in a common purpose shared with the organization:
A. if the organization is one with a brutal and limited purpose, then membership in that organization deems the member to be complicit in its crimes; or
B. if the organization is one whose commission of crimes are incidental to some other, primary purpose, complicity is determined by a fact-driven case-by-case analysis, having regard to the following factors adopted by Hughes J. in Bedoya v. Canada(Minister of Citizenship and Immigration), 2005 FC 1092:
1. The Nature of the Organization
2. The Method of Recruitment
3. Position/rank within the Organization
4. Length of time in the Organization
5. The Opportunity to Leave the Organization
6. Knowledge of the Organization's Atrocities
[9] As Justice Hughes held in Bedoya, supra. at paragraph 7:
The issue for determination here is not whether the applicant Sanchez personally committed a crime in the nature of personally killing or injuring or shooting someone but rather were there "serious reasons to believe" that he "committed a crime against peace, a war crime, or crime against humanity" because he was "complicit" in such a crime. "Complicity" has its genesis in the decision of the Federal Court of Appeal in Ramirez, supra, where the word "committed" in Article 1F(a) was equated with someone who had "personal knowledge and knowing participation", and was "an accomplice and abettor"."
[10] The standard of review on which to assess the application of Article 1F(a) to a given set of facts to make a complicity finding, and hence exclusion, is reasonableness simpliciter (Bitaraf v. Canada(Minister of Citizenship and Immigration)(2004), 254 F.T.R. 277 (F.C.) per Phelan J. at paragraph 18). The standard of review on which to assess the Board's findings of fact, including the facts comprising the six complicity factors set out above, is patent unreasonableness (Bitaraf, supra, at paragraph 17). Given that the applicant was a member of a non-brutal organization alleged to have committed crimes against humanity, I now turn to examine whether the Board's finding of complicity can withstand a somewhat probing inquiry, having regard to the complicity criteria. The Board found no direct evidence that the applicant committed any human rights abuses. The issue is whether the applicant was complicit in crimes against humanity committed by the Gendarme command under which he served.
1. The Nature of the Organization
[11] The Board considers this factor at page 17 of its reasons. The Board held:
The panel finds based on the totality of the evidence that the Gendarme was an organization with a limited and brutal purpose and that it was known to have committed crimes against humanity with impunity.
This finding of fact is clearly wrong. Both parties agree.
[12] The Gendarme has approximately 213,000 members. It is the law enforcement agency for Turkey outside the major urban centres. The evidence established that it is only a subset of the Gendarme who are responsible for crimes against humanity such as the disappearance of civilians and the forced evacuation and burning of Kurdish villages. Applying this factor, it is clear that membership in the Gendarme, as an organization, does not make the applicant complicit.
2. The Method of Recruitment
[13] The Board correctly found the applicant voluntarily chose to enter the Gendarme, and was not conscripted. However, the Gendarme is the Turkish national police force, and the fact that the applicant voluntary joined does not mean that he was complicit in crimes against humanity committed by a subset of the Gendarme.
3. The Position / Rank in the Organization
[14] The Board found the applicant's position was as a staff administrative officer, and not as a commanding officer. His rank was staff sergeant. He was responsible for administrative matters and for ordering food. The relatively low rank does not support a finding of complicity.
4. The Length of Time in the Organization
[15] The Board found the applicant served ten years in the Gendarme. This factor is neutral and does not make the applicant complicit.
5. Knowledge of the Organization's Atrocities
[16] The Board found that the applicant knew of atrocities committed by the Gendarme. The Board found:
i. the applicant knew of the human rights abuses perpetrated by the Gendarme, including the practices of arbitrary detention, forced evacuation, and extrajudicial execution;
ii. knowledge of the Gendarme's human rights abuses was widespread; and
iii. the applicant's evidence that he had no knowledge of specific crimes against humanity was not credible.
The Board's finding that the applicant had knowledge of the specific crimes against humanity committed by the Gendarme is correct. The Board also found that the applicant's evidence with respect to his knowledge was evasive and vague. Obviously the applicant was trying to disassociate himself from having had knowledge of the Gendarme's activities in this regard. This factor must be weighed against the applicant in deciding whether he was complicit.
6. Opportunity to Leave the Organization
[17] The applicant testified that he did not leave the Gendarme as soon as he learned of these atrocities because, as the Board stated at page 24 "... 15 years of service is compulsory ... [and] that the penalty for leaving before the full term is 5 years in the military prison". This factor is also neutral. The applicant obviously did not leave the Gendarme because he did not want to be imprisoned for desertion.
Conclusion regarding complicity finding
[18] The Board found that the applicant was complicit. This finding does not withstand a somewhat reasonably probing examination because:
1. the Board was clearly wrong in finding that the Gendarme was an organization with a limited brutal purpose so that simple membership in the Board would make the applicant complicit;
2. while the applicant volunteered, he was volunteering into Turkey's national police force. That does not mean that he was volunteering to join an organization which was committing crimes against humanity;
3. the applicant had a low rank in the Gendarme, so that his rank could not attribute atrocities to him and make him complicit;
4. the applicant had a reasonable basis for not leaving the Gendarme as soon as he learned about the atrocities;
5. the Board found correctly that the applicant was evasive and not credible with respect to his knowledge of the Gendarme crimes against humanity. This knowledge was widespread across Turkey. But it is also clear that the applicant was not personally involved with these crimes against humanity and was not in high-ranking position such that blame could be attributed to him; and
6. the applicant explained why he did not leave the organization before he did, i.e. for fear of imprisonment.
The Board did not refer to any evidence of the applicant's knowing participation in serious crimes. It is difficult to know whether the Board inferred involvement from proof of the applicant's membership in an organization which the Board erroneously found to be dedicated to a limited and brutal purpose. Upon reviewing the Board's decision on a reasonableness standard, the Court finds that the Board failed to identify that the applicant had personal and knowing participation in any crimes against humanity.
[19] For these reasons, the Court finds that the Board erroneously found that the applicant is excluded by reason of complicity. I will now turn to the second issue.
Issue No. 2: Did the Board err in finding that the applicant did not have a well-founded fear of persecution in Turkeyby reason of drawing an adverse finding of credibility and implausibility?
[20] On the question of inclusion at pages 4-5 of its reasons, the Board found the applicant's testimony not credible by reason of inconsistency, implausibility, omission of material fact, evasiveness, and intentional disclosure of fraudulent documentation:
The panel found the claimant was not a credible witness . . . The claimant's evidence in respect to inclusion was inconsistent internally and with objective documentary evidence. Although the claimant was articulate in respect to his knowledge of military law and other well-known and easily accessible factual information, the panel found such evidence was not probative of his claim. His evidence relating to the material aspects of his story was fraught with evasive responses, omissions, implausibilities and unresolved discrepancies. The panel further finds that the claimant knowingly disclosed fraudulent military documentation and failed to disclose documents specific to the period 1998-2001, including his employment records and the court summons received from the military prior to his exit from Turkey. The panel finds the claimant's evidence was not credible and trustworthy on a balance of probabilities. When considered in its totality, the claimant's testimony does not ring true.
[21] The Board cited reasons for its adverse credibility finding at pages 27-29:
The claimant's story was fraught with inconsistencies, omissions and implausibilities, for which a reasonable explanation was not forthcoming and his evidence contained a number of evasive and off-point responses, leading the panel to conclude that his evidence was neither credible nor trustworthy. Having so found the panel accords no weight in evidence to the case at bar of the medical report and the vive voce testimony of the witness evidence.
[...] The panel finds the claimant failed to provide credible and trustworthy details as to his responsibilities as an NCO in transferring the prisoner to the military court in Antalya. Similarly, no credible evidence was forthcoming as to when and how the claimant first learned that the prisoner had escaped and was reportedly found again, and what led him to conclude that he was framed.
[...] The panel finds it implausible that the claimant was inadvertently and randomly detained during a Ramadan celebration, and then exposed to an alleged elaborate frame-up in order to dishonourably discharge him on the basis of his alleged religious practices.
at page 30:
In November 2000, the claimant and his wife travelled to Germany on 14-day visas . . . When asked why he would return to the country [Turkey] in which he feared persecution, the claimant stated that they were only in Germany for a short period of time and that they had no option but to return to Turkey.
at page 32:
The panel does not find it plausible that JITEM, known for their brutal tactics, including extra-judicial killings, would have played a waiting game with the claimant if they believed he had information they wanted, or information they did not want shared. The panel concludes that JITEM did not visit the claimant as alleged, and draws an adverse finding against credibility in the clear of the claimant to mislead the panel.
[...]
The panel finds the claimant's evidence of a purported delivery of a Summons to Appear, the contents of which cannot be recalled, and for which there is no corroborative disclosed documentation, is self-serving and not credible.
Neither the enquiry into filing a refugee claim in Germany, nor the surveillance by the JITEM intelligence arm of the Gendarme, nor the receipt of the Summons to Appear in Court as an accused in the alleged ongoing investigation of his role in aiding an escaped prisoner, are mentioned in the PIF narrative.
[22] In reviewing these findings of credibility, I conclude that the Board provided adequate reasons, and that these findings of credibility are not patently unreasonable. The concerns the Board expressed demonstrates the systemic nature of the applicant's unwillingness or inability to provide sufficient particulars in reply to the Board's questions, which it was entitled to ask.
[23] For these reasons, the Court will not intervene in these findings of fact.
CERTIFIED QUESTION
[24] The applicant proposed a certified question with respect to exclusion. The respondent opposed that question on the grounds that the question of exclusion turns on the facts. The question proposed was:
"Can a person be found to be complicit in crimes against humanity based on a finding that he was providing administrative tasks in an organization that does not have a limited, brutal purpose if there is no specific finding which directly connects the applicant to any specific crime?"
[25] I agree with the respondent that this case turns on its facts. This question involves a number of factors which have been clearly decided by the jurisprudence. Accordingly, I am satisfied that this question should not be certified.
CONCLUSION
[26] For these reasons, the Court concludes that:
1. the Board erred in finding that the applicant was excluded from the Convention because he was a member of an organization with a limited and brutal purpose known to have committed crimes against humanity;
2. the Board did not adequately identify evidence that the applicant was complicit in serious crimes against humanity; and,
3. the Board did not err in finding that the applicant did not have a well-founded fear of persecution in Turkey because the Board found the applicant's evidence not credible.
ORDER
THIS COURT ORDERS THAT:
The exclusion finding of the Board's decision dated December 14, 2004 is quashed, and this application for judicial review is otherwise dismissed.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-102-05
STYLE OF CAUSE: IBADULLAH CATAL v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto,Ontario
DATE OF HEARING: November 1, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Lorne Waldman (416) 482-6501
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| John Loncar (416) 973-0933
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SOLICITORS OF RECORD:
| WALDMAN and ASSOCIATES 281 Eglinton Avenue East Toronto, Ontario M4P 1L3
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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