Date: 20010507
Docket: IMM-2128-00
Neutral citation:2001 FCT 441
Toronto, Ontario, Monday the 7th day of May 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
KENAN FIKRET TCHAOUCH
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Tchaouch is a 29 year old citizen of Bulgaria who claimed status as a Convention refugee based on his Turkish ethnicity. He brings this application for judicial review from a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated April 3, 2000, whereby the CRDD determined that Mr. Tchaouch was not a Convention refugee.
[2] Mr. Tchaouch testified that he was harassed and persecuted during the communist regime in Bulgaria due to his Turkish ethnicity. After the fall of communism he stated that the government continued to treat Turks badly. Mr. Tchaouch testified that he was given low grades in school despite having done well in his studies, and that he was unable to find a job because of his Turkish ethnicity.
[3] Mr. Tchaouch testified that he opened a small coffee shop in the town of Rousse in September, 1997. Although initially he had clients of all nationalities, later only Turkish people came to his shop. Mr. Tchaouch stated that his business operated successfully for the first six months, until he was visited by the police in March of 1998. Mr. Tchaouch stated he was checked almost daily by the price control police which hurt his business because he could not attend to his customers and they were uncomfortable with the police presence and avoided his shop. Mr. Tchaouch also stated that the police started to harass him by coming to his shop all of the time. The police were said to visit him because of the fact that many Turks were meeting in one place, and there was a rumour that Turks were thinking of seeking independence in Bulgaria.
[4] Mr. Tchaouch's shop was vandalized on two occasions. On the first, glass in the front door was broken. On the second, the main window was broken. The words "Turkish out" were written on the premises. Mr. Tchaouch stated that he reported the incidents to the police who did nothing.
[5] On April 28, 1998, Mr. Tchaouch's shop was set on fire. Mr. Tchaouch stated he waited for a report of the incident and contacted both the police and the fire department, but was told by both that the fire was still being investigated. While he began to rebuild his shop, Mr. Tchaouch stated that on June 1, 1998 the police questioned him about the fire and beat him in an effort to extract a confession that he set the fire. Mr. Tchaouch stated he visited a hospital, but was told there was nothing that could be done for him. He later visited a doctor who x-rayed his back. The x-ray revealed that he had cracked a bone in his back.
[6] After recovering from his injuries Mr. Tchaouch said he paid an airport employee to help him leave Bulgaria on November 20, 1998. He entered Canada and claimed status as a Convention refugee.
[7] The CRDD found that the issues of credibility and discrimination versus persecution were determinative of the claim. The panel found that during the communist era, the treatment of the Turkish minority in Bulgaria was persecutory. The CRDD however expressed its view that the changes of the post-communist era had taken root and were durable. With respect to the incidents of the 1990s, Mr. Tchaouch was found to have suffered discrimination rather than persecution so that the success of the claim depended on the incidents of 1998 related by Mr. Tchaouch.
[8] With respect to those incidents, the CRDD found Mr. Tchaouch's testimony implausible for a number of reasons. In the result, the CRDD concluded that it was unable to accept his testimony without more cogent evidence, such as an investigative report from the fire department or evidence of a persistent follow up by Mr. Tchaouch to have the police brought to justice after his beating. The incidents of vandalism were said to amount to discrimination, and not persecution.
[9] Mr. Tchaouch did not take issue with the panel's conclusion that the success of his claim depended upon the incidents which took place in 1998.
[10] Mr. Tchaouch, through his counsel, acknowledged that the CRDD has exclusive jurisdiction to determine the plausibility of testimony, and that so long as inferences drawn by the CRDD are not patently unreasonable its findings are not open to judicial review. Mr. Tchaouch argued, however, that the cumulative effect of the panel's plausibility findings was a patently unreasonable result. It is necessary therefore to review each of Mr. Tchaouch's concerns with respect to plausibility findings.
[11] Mr. Tchaouch contended that the finding that it was not plausible that the police visits hindered the success of his business because of the success of the business, was premised upon a misapprehension of the evidence. He argued that his testimony was to the effect that the business was only successful for the first six months until the police began their campaign of harassment. However, in answer to questions put to him by the panel, Mr. Tchaouch testified that his business was started with financial help from his family (which provided him with approximately $1,000.00) and that by the time the business was destroyed he had saved approximately $1,500.00. On the basis of that testimony I cannot conclude that the CRDD's conclusion that the coffee shop was successful so that it was not plausible that it was hindered by police was perverse or made without regard to the evidence.
[12] Mr. Tchaouch also argued that the CRDD's finding that the visits to his coffee shop by the price control police were part of the reforms urged by the International Monetary Fund was not supported by any evidence. However, Mr. Tchaouch failed to put any evidence before the Court to support this assertion. The CRDD footnoted its comments about currency control in Bulgaria to a country assessment document entitled "Economic History". Mr. Tchaouch has therefore not established that the CRDD's finding was not supported by any evidence.
[13] The balance of Mr. Tchaouch's attack on the plausibility findings was premised on his assertion that the panel ignored documentary evidence which established that harassment and brutalization of ethnic Turks were ongoing in a manner consistent with his testimony.
[14] Unfortunately, documents to support that contention were not put in evidence before the Court.
[15] I note, however, that before the CRDD Mr. Tchaouch's counsel submitted that the "country condition documentation before you ... goes both ways". In response, the refugee claims officer stated:
Counsel states that documentary evidence goes both ways and that the information on minorities, in general, is applicable to cases of ethnic Turks. I respectfully disagree with this assertion, especially the one that the documents go both ways.
And think one indication of how far removed the ethnic Turkish situation is from other minorities in Bulgaria, specifically Roma, can be gleaned from the fact that, for example, the International Helsinki Federation Report, which is at 3.1.1, has a section on the protection of ethnic minorities on page 3.1.8, which does not even contain any reference to the ethnic Turks. Likewise, Bulgaria Helsinki Committees Report – this is a local NGO – on the ground in Bulgaria. On page 3.2.14, in its section on minorities, it has no reference to ethnic Turks and persecution against them.
It is further noteworthy that there are references scattered in the documentary evidence concerning trials and convictions of police officers and security personnel on charges stemming from mistreatment of ethnic Turks back in 1989. One such reference is found at 3.2.1 and another is found in the British Home Office Report on Bulgaria, which bases its report on a variety of different sources and summarizes them. But it has a reference on page 3.3.30 to a trial back in 1993 of former state security officials, for mistreatment of ethnic Turks in the town of Rousse, interestingly enough, which is where the claimant lived for a number of years. Perhaps the claimant's assertions that it's impossible to complain about the police should be viewed against this background as well.
[16] I am left to conclude that Mr. Tchaouch has not established that the CRDD's conclusion that police conduct was "not perfection and there may be other groups in Bulgarian society who are so marginalized that they continue to be victims of police excesses, but the documentary evidence does not support the contention that this is the case of ethnic Turks" was not reasonably open to it on the record.
[17] Once the CRDD reached that conclusion, I find that its findings as to the plausibility of Mr. Tchaouch's testimony cannot be characterized to be individually, or cumulatively, patently unreasonable.
[18] The application for judicial review must therefore be dismissed.
[19] Counsel posed no question for certification and none is certified.
ORDER
[20] IT IS THEREFORE ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
J.F.C.C.
Toronto, Ontario
May 7, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2128-00
STYLE OF CAUSE: KENAN FIKRET TCHAOUCH
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, APRIL 19, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: MONDAY, MAY 7, 2001
APPEARANCES BY: Mr. John Grice
For the Applicant
Ms. Marissa Bielski
For the Respondent
SOLICITORS OF RECORD: John Brice
Barrister & Solicitor
1110 Finch Avenue West
Suite 706
North York, Ontario
M3J 2T2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010507
Docket: IMM-2128-00
Between:
KENAN FIKRET TCHAOUCH
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER