Date: 20040811
Docket: IMM-6701-03
Citation: 2004 FC 1115
Toronto, Ontario, August 11, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
SERDAR KAYAN
DIDEM YAGCI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision rendered on August 1, 2003, by the Immigration Protection Division that Serdar Kayan and his wife, Didem Yagci (applicants), were not Convention refugees or persons in need of protection under sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
FACTS
[2] The applicants are both citizens of Turkey. Mr. Kayan (applicant) is of Kurdish ethnicity, while Ms. Yagci (female applicant) is of Turkish ethnicity. The applicants allege that Kurdish origin is a basis for persecution in Turkey, as well as the fact of a Turk marrying a Kurd. Further, the applicant has not yet done his military service, mandatory for all Turkish men. Just before he left, he was informed that he would have to report to the authorities to begin his service.
[3] As a Kurd, the applicant feared being mistreated in the army and being in a situation where he would be obliged to repress other Kurds, in the event that his military service had him patrolling the eastern region. Moreover, because he did not obey the order to report to the authorities for his service, he feared serious reprisals.
[4] The applicant described various incidents where he had been mistreated because of his Kurdish ethnicity: he had been arrested in 1993, at the age of 17, and detained by the authorities for five days during which time he was beaten and tortured. The legal tribunal before which he appeared at that time considered that the confessions obtained by force were not valid and he was acquitted. At the university he was assaulted by Turkish Nationalist students; during one of these assaults, one of his Kurdish fellow students was killed.
[5] The applicants also spoke of the danger posed by the reaction of the female applicant's family to her marriage with a Kurd. One uncle threatened her because she was dishonouring the family. At the age of 17, that same uncle had been sentenced to 15 years for killing someone as a matter of honour.
ANALYSIS
[6] Based on the evidence before it, the panel determined that the applicants would not be in danger if they were to return to Turkey. The Court will not intervene in this kind of factual determination unless it is patently unreasonable. As Blanchard J. explained in Bakir v. Canada (Minister of Citizenship and Immigration, [2004] F.C.J. No. 57 :
¶ 12 The determination of the applicant's risk of persecution is a factual issue and should be afforded a high degree of deference by the Court. The Supreme Court acknowledged in Pushpanathan v. M.C.I., [1998] 1 S.C.R. 982, that the Refugee Division is a Board specialized in the assessment of risk of persecution, and that such determinations are factual in nature. It is generally accepted that the standard of review applicable to findings of facts is that of patent unreasonableness. I will therefore apply the standard of patent unreasonableness to the first issue.
[7] The panel considered all of the evidence. If it made a mistake on minor points, for example recesses not granted, that is not enough to find that the panel's decision was an error in law or based on a perverse assessment of the facts (Martinez v. Canada, [1981] F.C.J. No. 1132 (C.A.)). The reports filed into evidence on the current conditions in Turkey allow to reasonably conclude that the applicant is not more at risk than any other person that did not do his military service when he had been ordered to do so.
[8] A conscientious objector may be someone who is opposed to doing his military service because that service would require his involvement in a military action against his political beliefs and condemned by the international community. In Zolfagharkhani v. Canada (Minister of Employment and Immigration),[1993] 3 F.C. 540 (C.A.), MacGuigan J.A., on behalf of the Federal Court of Appeal, stated the principles which apply in determining if a law of general application can be persecutory in relation to a refugee claimant:
¶ 18 After this review of the law, I now venture to set forth some general propositions relating to the status of an ordinary law of general application in determining the question of persecution:
¶ 19(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.
¶ 20(2) But the neutrality of an ordinary law of general application, vis-a-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.
¶ 21(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
¶ 22(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.
[9] In this matter, the applicant had objected to continuing to serve in the Iranian army because he had been told, and had reason to believe, that the Iranian army intended to deploy chemical weapons against the Kurds. The Court of Appeal found in favour of the applicant who, even though he was an ambulance attendant, could in a way have been complicit if he had remained within the ranks while chemical weapons were being used against the Kurds, a gesture certainly condemned by the international community, as reflected in many treatises to this effect.
[10] It is therefore a matter of establishing that the law of general application would be equivalent to persecution in its application to the applicant for one of the five grounds listed in the Convention.
[11] In this case, the panel looked for indications in the evidence that the applicant could be required to take part in actions against the Kurds. In fact, the reports state the contrary. The army rather avoids sending conscripted Kurds into Kurdish villages, out of fear that they would help the villagers to resist the army. Furthermore, tensions between the Turks and Kurds have greatly decreased since 1999. First, Chief Ocalan called for a stop to the violence; second, Turkey knows that the treatment of Kurds is a sensitive point and strictly monitored by the European Union, which it very much wants to join.
[12] The applicant did not establish that the sanctions would be disproportionate. The sanctions provided and imposed, according to the evidence in the file on the country conditions, are not disproportionate. Moreover, the applicant did not persuade the panel that he in particular would be targeted. The applicant claims that he would be because he had already been arrested. However, the document calling him to military service indicates that he has no record. It is not likely, according to the panel, that he would be persecuted.
[13] In Bakir, supra, Blanchard J. of our Court allowed a judicial review in a very similar situation, namely that of a Kurdish conscientious objector, because the panel had not taken into consideration the Amnesty International evidence on the treatment of Kurdish deserters who return to Turkey. In the case before us, the panel did in fact take this evidence into account, but dismissed it because it referred to a particularly tense period between Turks and Kurds, and more solid and more recent evidence indicated the contrary: that a Kurdish deserter has no more to fear than any other deserter.
[14] It is highly likely that discrimination exists against the Kurds in Turkey, and the panel does not deny it. Nevertheless, in the panel's view, this discrimination did not reach the threshold of persecution in the applicants' case.
[15] Beaudry J. stated in Szabados v. MCI, [2004] F.C.J. No. 903:
8. The cumulative effect of the discrimination is clearly a question of facts, which means this Court will only interfere with the Board's decision if its decision is patently unreasonable.
9. The applicant argues that the Board did not consider the cumulative effect of discrimination against him. He, however, failed to bolster this argument by references to the Board's decision or to specify what, in the facts, had a cumulative discriminatory effect. It should also be noted that the Board did not have to explicitly state that it dealt with the cumulative effect of the evidence. That is what McKeown J. stated in Lo v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 905, paragraph 5 (T.D.) (QL):
In my view, although the Board does not state that it dealt with the cumulative effect of the evidence, it did so by implication. There is no doubt that this applicant has suffered discrimination and harassment in the PRC as a result of her "bad family background", as viewed by the authorities in the PRC. However, the documentary evidence with respect to the lack of objective prospective fear of persecution is very strong. In reviewing the evidence as a whole, the finding that the applicant did not have an objectively well founded fear of persecution is not patently unreasonable.
[16] In view of the fact that the panel considered all of the evidence before it, that its assessment of the facts cannot be found to be erroneous in law or perverse, in my view it would be inappropriate for the Court to intervene in the panel's decision.
[17] For these reasons, I would dismiss the application for judicial review.
ORDER
THE COURT ORDERS that:
- the application for judicial review be dismissed;
- no question for certification.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6701-03
STYLE OF CAUSE: SERDAR KAYAN
DIDEM YAGCI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 5, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Blais
APPEARANCES:
Eveline Fiset FOR THE APPLICANTS
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset
Montréal, Quebec FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT
Date: 20040811
Docket: IMM-6701-03
BETWEEN:
SERDAR KAYAN
DIDEM YAGCI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER