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                                                                                                                                             Date: 20021114

                                                                                                                                      Docket: IMM-38-02

                                                                                                                                                                       

                                                                                                                  Neutral citation: 2002 FCT 1183

Toronto, Ontario, Thursday, the 14th day of November, 2002

PRESENT:      The Honourable Mr. Justice Campbell

BETWEEN:

BAHADIR BUYUK

MERAL BUYUK

Applicants

- and -

THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated November 26, 2001, wherein the CRDD determined that the Applicants are not Convention Refugees.

[2]                 The Applicants are married and are citizens of Turkey. They claim a well-founded fear of persecution based on two grounds, they feared ultra-nationalists who did not want to see the Applicants succeed because of their ethnic origin as Alevi Kurds, and fear the Turkish authorities who will know they submitted a claim for refugee status in Canada.

[3]                 The Applicants claim to have been subjected to past persecution on the basis of their ethnicity and religion. The male Applicant claims to have been beaten and detained by police numerous times, and beaten by ultra-nationalists as well. The female Applicant claims to have been arrested from her home, and fired from jobs on the basis of her ethnic background. The incidents at issue took place between 1986 and 1993, and the central issue in the claim occurred in March 2000.

[4]                 The male Applicant says that, in March 2000, he was assaulted and beaten in the street by ultra-nationalists who opposed a tender submitted by the Applicant's engineering company for a major project; he submitted that he was attacked because the aggressors did not want an Alevi Kurd to win the contract, and they told him to withdraw the offer made by his firm. The female applicant states that she also received threatening telephone calls in relation to the tender. After this incident, the Applicants decided to leave Turkey and seek refugee protection in Canada.

[5]                 During the hearings, the CRDD advised the Applicants that it was most interested in hearing about the events of March 2000. It directed counsel for the Applicants to focus her questions on the specific "culminating" incident, as opposed to the incidents of past persecution.


[6]                 In addition, counsel for the Applicants was given a specific direction in relation to her closing argument:

Presiding member:    The panel would like to hear submissions from you, Ms. Bruce, on the claims, and if it's of any assistance, we would like to hear your submissions focused on a couple of issues.

To begin with, is there sufficient-is it credible that the incidents of March 2000 actually occurred; that is to say, both Mr. Buyuk and his wife were threatened and he suffered serious harm as a result of a bid for a construction project that his company tendered.

And then having particular regard to the profile of these two claimants, is there sufficient, credible evidence before the panel that persons like them have good grounds for fearing persecution in Turkey on the basis of their ethnicity and religion, or on the basis of any other Convention ground that might be relevant to their claims?                                                   

(Transcript, p. 293).

[7]                 However, in its reasons, the CRDD states that:

I am not satisfied that these claimants were or believed themselves to be persecuted in the past given their failure to leave Turkey following any of the early incidents of alleged serious harassment by authorities. The fact that they did not leave earlier and the fact that the reason given was that Mr. Buyuk wanted to complete his education suggest that he might be exaggerating the harshness of this past treatment. [Emphasis added]

[8]                 In my opinion, a manifest unfairness occurred in the present case by the CRDD limiting the Applicants' production of evidence and argument on past persecution and then making a finding against them on this very same point. Therefore, I find that the decision was reached in reviewable error.


ORDER

Accordingly, the CRDD's decision is set aside and the matter is referred back to a differently constituted panel for redetermination.

            "Douglas R. Campbell"

                                                                                                                                                                                    

                                                                                                      J.F.C.C.                       

                                                                                                                   


             FEDERAL COURT OF CANADA

                  TRIAL DIVISION

Names of counsel and solicitors of record

                                                         

DOCKET:                                              IMM-38-02

STYLE OF CAUSE:              BAHADIR BUYUK

MERAL BUYUK

                                                                                                   Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        THURSDAY, NOVEMBER 14, 2002   

REASONS FOR ORDER

AND ORDER BY:                               CAMPBELL J.

DATED:                                                 THURSDAY, NOVEMBER 14, 2002

APPEARANCES BY:    Mr. Lorne Waldman

For the Applicants

Mr. Tamrat Gebeyehu

For the Respondent

                                                                                                                   

SOLICITORS OF RECORD:        Waldman & Associates

281 Eglinton Ave. East

Toronto, Ontario

M4P 1L3

For the Applicants                        

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent


FEDERAL COURT OF CANADA

                                                               

                                    Date: 20021114

                  Docket: IMM-38-02

BETWEEN:

BAHADIR BUYUK

MERAL BUYUK

                                               Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                             Respondent

                                                   

REASONS FOR ORDER AND

ORDER

                                                   

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