Date: 20021015
Docket: IMM-5364-01
Neutral citation: 2002 FCT 1074
BETWEEN:
ISMAIL OZTURK,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant alleges that the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) erred in finding, in its decision dated October 22, 2001, that the applicant is not a Convention refugee. He asks, on this application for judicial review, that the decision be set aside and that the matter be referred back for rehearing by a differently constituted panel of what is now the Refugee Protection Division.
[2] The applicant is a citizen of Turkey. He is Alevi and a supporter of a left-wing political party. He claims a well-founded fear of persecution on the basis of his religion and his political opinion as well as on conscientious objection.
[3] The applicant, originally from the village of Toklu in Trabzon province, attended university in Istanbul. During his university years he participated in protest demonstrations. On two occasions he was arrested, detained for two days, questioned about illegal leftist organizations and released. A third arrest occurred during a May Day celebration in 1999. Allegedly, the applicant was arrested, accused of being a subversive and communist, beaten and subjected to falaka (a torture technique involving beating the soles of victims' feet) and cold water pressure. He was released after three days and was given the option of leaving Istanbul or reporting to the local police station. The applicant returned to Trabzon.
[4] The applicant took sales training and obtained employment in Trabzon. During a lunch break in February 2000, he was reading a copy of the left-wing newspaper entitled Evrensel. Two of his co-workers approached him, seized the paper and threw it in the garbage. Later that day, the applicant was attacked at the bus stop by a group of people who called him a communist and warned him not to read Evrensel. The applicant lodged a complaint with the police regarding his co-workers. The police questioned and released them. Thereafter, the applicant began receiving anonymous phone calls and death threats.
[5] The applicant took leave from work and began making arrangements to leave Turkey. In March 2000, the same two co-workers complained to police that the applicant was linked to the terrorist group Dev-Sol and was distributing its propaganda. The police attended at the applicant's home but the applicant was in Istanbul. The applicant's parents contacted him, informed him of the police visit, told him about the allegation and advised him that he was to report to the police.
[6] The applicant left Turkey on April 30, 2000 with a Canadian visitor's visa and registration for an English second language course. He claimed refugee status on June 15, 2000 alleging that if he were to return to Turkey, he would be detained and tortured because he is suspected of being involved in Dev-Sol. At his hearing, the applicant testified that he was a sympathizer of the political party Emet. He also testified that two weeks earlier, he had been notified by his parents that a document ordering him to report to the local draft office had arrived. The applicant claimed he did not want to serve in the military because it persecutes civilians and empties villages. If returned to Turkey, the applicant said that he would be forcibly taken to serve.
[7] The applicant submits that the CRDD should have found that conscientious objection applied. He also alleges that the panel erred by failing to consider the totality of the evidence. Specifically, the applicant argues that the panel, in arriving at its decision, ignored his previous arrests, failed to consider documentary evidence related to left-wing newspapers in Turkey and failed to properly address the death threats.
[8] Regarding conscientious objection, there was no reference to this ground in the personal information form (PIF). The CRDD found the applicant's credibility on this issue to be seriously compromised. The panel stated that the applicant knew, before leaving Turkey, that his exemption from service expired in November 2000. In view of this knowledge, such a significant ground should have been stated in the PIF. Additionally, there was no evidence that the applicant had articulated his opposition to military service. The CRDD found that the applicant had not demonstrated that he was a conscientious objector and that his objection was an "after-the-fact reason inserted to bolster a weak claim".
[9] A high level of deference is accorded to the credibility findings of the CRDD. The omission of a significant or important fact from a claimant's PIF can be the basis for an adverse credibility finding: Akhigbe v. Canada (Minister of Citizenship and Immigration) 2002 FCT 249, [2002] F.C.J. No. 332. I am not persuaded that the CRDD made any error in finding that conscientious objection did not apply in this instance.
[10] Regarding the totality of evidence, the applicant argues that the CRDD based its decision on the newspaper complaint issue and ignored his experiences in previous arrests. He relies on the following passage from the decision:
According to the claimant, he believes he faces a serious possibility of persecution - detention and torture - 'because there is a complaint against me'. His fear of persecution relates to having been identified, more probably than not, by the two workers against whom he made a claim, as a member of Dev-Sol. The claimant was very clear that his alleged fear of a serious possibility of persecution in Turkey did not arise out of his earlier interaction with Turkish police.
[11] The panel did refer to the previous arrests when summarizing the facts. It also stated that it considered the evidence before it. The transcript supports the conclusion that the applicant's fear did not arise out of his earlier interactions with the Turkish police. The applicant was questioned three times about his reason for fearing persecution if returned to Turkey. Each time, the applicant referred to the complaint made against him following the newspaper incident and the attack in February, 2000 (Transcript: pages 32, 33, 34 and 47). The tribunal is presumed to have weighed and considered all the evidence presented to it unless the contrary is shown: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.). Here, the transcript supports the CRDD finding that the applicant's fear did not arise out of the earlier arrests. There exists no reviewable error in this respect.
[12] The applicant also submits that the CRDD ignored the documentary evidence with respect to the newspaper Evrensel. The difficulty with this argument is that the evidence referred to by the applicant does not assist him. The evidence deals with the murder of an Evrensel journalist in 1996 and the attitude of police toward the distributors of pro-Kurdish journals. Specifically, distributors claim harassment and confiscation of their newspapers by the police. The applicant claimed to be merely a reader. Moreover, the police were aware that the applicant was a reader of Evrensel because that formed the basis of his complaint against his co-workers in February 2000. The applicant did not suffer any adverse treatment from the police as a result of their knowledge. It cannot be said, in such circumstances, that the panel was obliged to specifically refer to the documentary evidence in question. This does not constitute critical, contradictory documentation. Its probative value is such that it is not surprising that the CRDD did not refer to it.
[13] Lastly, the applicant argues that the CRDD failed to properly address the death threats received by the applicant. It is readily apparent that the panel concluded that the death threats amounted to a personal vendetta against the applicant by his co-workers. Therefore, it cannot be said that the CRDD failed to explain why it concluded that the death threats did not support the applicant's claim. At page 8 of its decision, the CRDD stated:
The claimant was asked more than once whether he didn't think the police would be able to recognize the pattern of mutual accusation that was going on between the claimant and his former co-workers . . . Indeed, the claimant in his own PIF, #19, describes what the workers were doing in accusing him was taking revenge. The panel does not find that the threatening calls allegedly made to the claimant or the alleged complaint made to police against him in Trabzon constitute the objective basis to ground a refugee claim that this claimant faces a serious possibility of persecution by reason of his political opinion. That is, the only thing to link the claimant to Dev-Sol is the word of the claimant's co-workers who bear him ill will.
There is further support for this conclusion in the applicant's PIF and in his oral testimony. I am not persuaded that the CRDD erred as alleged.
[14] It is noteworthy that the CRDD stated that the applicant initiated his arrangements to leave Turkey and obtained his passport before the police ever visited his home to report the complaint against him. The applicant's only political activity after leaving university was reading the left-wing newspaper Evrensel. The panel also found that the six-week delay in making a claim was relevant to the issue of the applicant's subjective fear. The applicant claimed to have conducted research prior to leaving Turkey yet also claimed to know nothing of the refugee process. When considered with the remainder of the evidence, this factor supported the picture of the applicant as "as an individual with mild political leanings, who ran into difficulty in his workplace and left the country".
[15] The CRDD provided detailed, comprehensive and cogent reasons for its decision. Its findings are supported by the evidence. In reality, the applicant is asking the Court to substitute its assessment of the evidence for that of the CRDD. That is not the Court's function. For the reasons given, my intervention is not warranted. The application for judicial review is dismissed.
[16] Counsel did not suggest a question for certification. This case raises no serious issue of general importance. No question is certified.
« Carolyn A. Layden-Stevenson »
Judge
Ottawa, Ontario
October 15, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5364-01
STYLE OF CAUSE: ISMAIL OZTURK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, OCTOBER 10, 2002
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: October 15, 2002
APPEARANCES BY: Ms. Krassina Kostadinov
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Ms. Krassina Kostadinov
Barrister & Solicitor
Waldman and Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent