Date: 20040705
Docket: IMM-4406-03
Citation: 2004 FC 956
Edmonton, Alberta, this 5th day of July 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
MUSTAFA ACAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mustafa Acar (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated May 26, 2003. In its decision, the Board determined that the Applicant is not a Convention refugee nor a person in need of protection, pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended (the "Act").
[2] The Applicant is a citizen of Turkey and a member of the Kurdish minority. He was a member of the People's Democracy Party ("HADEP") that advocates for rights of Kurds. He claimed that he suffered persecutory treatment, including arrest, detention and torture, in 1998, 2000 and 2001, as a result of his membership in that party and his related activities. In February 2002, he was arrested, detained for several days, tortured and ordered to become a police informant against HADEP or be killed.
[3] After this incident, the Applicant went into hiding and left Turkey in August 2002. He arrived in Canada on August 27, 2002 when he made his refugee claim.
[4] The Board found that the Applicant is a Kurd who had joined HADEP after graduating from university. However, it found that he had never been arrested or detained or tortured. It found that he had not been asked to spy on HADEP.
[5] The Board also found that the Applicant had obtained his passport by legitimate means and that when he left Turkey, the authorities were not interested in him.
[6] The Board further found that the Applicant's delay in leaving Turkey after his arrest and torture in May 2001, until August 2002, undermined the subjective element of his fear of persecution and diminished the general credibility of his claim. As well, the Board considered it reasonable to believe that the Applicant would have tried to leave Turkey after his release in May 2001 in order to avoid military service because he had claimed to be a conscientious objector.
[7] The Board said that since the Applicant was old enough to be required to serve in the military, it would consider if he would suffer persecution or cruel or unusual punishment if he were to serve in the Turkish army or if he were arrested as a draft evader.
[8] The Board found the conditions had changed in Turkey and that there was no reliable documentary evidence to show that the Applicant would be forced to kill fellow Kurds while serving as a member of the Turkish military or that Kurdish members of the military are treated differently than other members of the military. In the result, the Board concluded that the Applicant lacked a well-founded fear of persecution on any of the enumerated grounds and was not a person in need of protection.
[9] The Board's decision here is apparently based upon credibility findings and its assessment of the documentary evidence. Generally, a Board is entitled to a high degree of deference relative to its credibility findings. The test is whether such findings are reasonably supported by the evidence before the Board.
[10] In this case, there is doubt whether the Board's credibility findings are reasonably supported by the evidence. In my opinion, this Board based its credibility findings in part upon speculation. In this regard, I refer to the Board's finding that because HADEP is now banned, it was unlikely that the Applicant would suffer more than a mere possibility of persecution as the result of his membership in that party.
[11] This conclusion, in my opinion, is not reasonably supported by the evidence that was before the Board. There was documentary evidence, including a report from Amnesty International, that addressed risks to former members of HADEP. This evidence was relevant. The Board did not address that evidence and in my opinion, that was an error.
[12] Accordingly, this application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted Board. There is no question for certification arising.
ORDER
This application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4406-03
STYLE OF CAUSE: MUSTAFA ACAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MARCH 24, 2004
REASONS FOR ORDER BY: HENEGHAN, J.
APPEARANCES BY: Mr. Raoul Boulakia
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Mr. Raoul Boulakia
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Mr. John Loncar
For the Respondent
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20040705
Docket: IMM-4406-03
BETWEEN:
MUSTAFA ACAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER