Date: 20050506
Docket: IMM-4438-04
Citation: 2005 FC 637
BETWEEN:
MUSTAFA CURE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
STRAYER D.J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board dated April 16, 2004. The Panel found that the claimant is neither a convention refugee nor a person in need of protection.
[2] The claimant attacks the decision on the basis that the Panel erred because: (1) the Panel failed to give reasons for finding the claimant not to be credible; (2) in finding a lack of credibility, the Panel focussed on contradictions and inconsistencies without properly analysing the claimant's full evidence; and (3) the Panel, in respect of the claimant's assertion of fear of persecution as a draft evader if he should return to Turkey, did not consider all the evidence as to the probable consequences for the claimant upon his return.
[3] The first two assertions relate to the findings of the Panel that, although the claimant may have been involved in the Fethullah Gulen (FG) movement, he had failed to demonstrate on the balance of probabilities that his political and religious profile would be of interest to the authorities upon his return. Notwithstanding the claimant's evidence that he had been harassed in Turkey because of his FG associations, the Panel adequately explained why it found that his account lacked credibility and why it disbelieved that a number of the repressive incidents which he described actually happened. It is well established that findings of credibility by a Panel should not be interfered with by the Court unless they are manifestly wrong - that is, patently unreasonable. I am unable to say that the Panel's findings of credibility are of that character. While I might not have reached the same conclusion on some questions of plausibility, I believe the conclusions reached by the Panel were open to it.
[4] The other issue relates to the question of probable consequences for the claimant on his return to Turkey, having failed to report for military service when he was obliged to do so. The Panel found that the claimant did not qualify as a conscientious objector and in these proceedings the claimant does not challenge that conclusion. The Panel also found that:
While the claimant may be punished for military evasion, that punishment is prosecutory not persecutory. Further, there is no evidence before the Panel to demonstrate that the punishment for military evasion is cruel and unusual.
[5] The claimant says that the Panel ignored important evidence to the contrary. It is clear that if a claimant asserts that he will be subjected to an excessive punishment upon his return the onus is on him to support this claim. In his written submissions to the Panel, counsel for the claimant did not refer to any documentary evidence pertinent to the situation of the claimant. He cited material concerning an incident which had happened to a Turkish soldier who had "absconded from military service". The claimant did not abscond from military service but left Turkey before he was obliged to commence military service. Counsel in his submissions attached an article concerning maltreatment of conscientious objectors and cases concerning them. The Panel found this claimant not to be a conscientious objector and he does not challenge that finding. He asserts, and I accept, that excessive punishment for draft evasion could amount to persecution: see Abramov v. Canada [1998] F.C.J. No. 844 (T.D.). In those submissions to the Panel he did not however provide any evidence as to what penalty a draft evader might encounter under Turkish law. Counsel now cites two documents which state that the matter is governed by Article 63 of the Military Penal Code. It is clear that one of these documents, a United Kingdom Government document of 2002, was part of the record and it is referred to in the decision of the Panel where it discusses the question of disproportionate punishment for draft evaders. (See Applicant's application record page 25, footnote 17). The relevant statement in that document is as follows:
5.82 The penalties for evasion of military service (draft evasion or desertion from the army in peacetime) are set out in Article 63 of the Turkish Military Penal Code. There is a sliding scale of imprisonment:
* * * * * * * * * *
(v) A person who reports voluntarily after three months is sentenced to four months' to two years' imprisonment.
(vi) A person arrested after three months is sentenced to six months' to three years' heavy imprisonment. (Heavy imprisonment involves a more restrictive regime, with one-tenth of the sentence being in solitary confinement. Article 13 of the Turkish Penal Code refers).
The claimant quotes only subparagraph (vi) which describes a penalty of up to three years' heavy imprisonment, one-tenth of which would be in solitary confinement. It appears to me that the more relevant subparagraph is (v); at least it would be applicable if the claimant upon his return to Turkey reports voluntarily and does not have to be arrested. In such case the penalty would be from four months' to two years' imprisonment without solitary confinement. It appears to me that the Panel took into account the relevant information from the UK Government Report in concluding as it did.The claimant did not put before it, nor has the Panel been shown to have overlooked, any compelling evidence that he would probably be subjected to persecution or cruel and unusual punishment.
[6] The application for judicial review will therefore be dismissed.
(s) "B.L. Strayer"
Deputy Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4438-04
STYLE OF CAUSE: MUSTAFA CURE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 14, 2005
REASONS FOR ORDER: Strayer D.J.
DATED: May 6, 2005
APPEARANCES:
Alex Billingsley FOR THE APPLICANT
Brad Gotkin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cintosun & Associates
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT