Ottawa, Ontario, Wednesday the 22nd day of June 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Koken is a citizen of Turkey who claimed protection and status as a Convention refugee. He brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel") that he is neither a Convention refugee nor a person in need of protection.
[2] Mr. Koken testified that he is a Muslim and a follower of the Hizmet religious movement. He says that members of Hizmet practice Islam together, read the Nisale Nur (the Koran) and share the belief that they should all perform good deeds. Mr. Koken testified that while in Turkey he worked at Zafer, a magazine that publishes articles on Islam and is associated with Hizmet. The basis of his claim for protection was his assertion that, as a result of his association with Zafer, he was persecuted by Turkish authorities.
[3] In this application, the Court is faced with scant reasons, and reasoning, from the RPD. The panel's description of Mr. Koken's evidence, and analysis of his claim, in its entirety, is as follows:
The claimant testified that he first became associated with Hizmet in 1998 through a colleague while working at an Iveco truck factory. He stated that he got more into it and started to volunteer for Zafer; a journal published by Hizmet. He provided documentary evidence to confirm his participation in Hizmet and Zafer. I accept that he is associated with Hizmet and Zafer.
He further testified that he was promoted to office manager at Zafer and that he collected subscriptions to the magazine and met businessmen and collected donations for scholarships for students supported by his organization. He testified that the tax police came to audit their books at the magazine on a number of occasions wanting to find fault with their records but that they did not find any. I find that the incidents that the claimant cites in his evidence that the police took him and other colleagues to the police station and interrogated them, even when taken cumulatively, amounted to harassment and not persecution. I further draw a negative inference from the fact that the claimant wrote in his POE notes that he was arrested twice but stated at the hearing that he was arrested four times. When the inconsistency was brought to his attention he blamed it on his translator at the time he filled the form for the basis of his claim. He said that he told the man whom he used to live with the number of times he was arrested and the man wrote it down. I find his account of the number of times he was arrested and his explanation not to be credible. The claimant's counsel signed the statement of the claimant with the undertaking that the claimant understood the contents of the document before he signed it. In any case the claimant was interrogated and released without any condition on all occasions and no charges were made against him. I find it reasonable to infer that the police would have, on a balance of probabilities, brought charges against the claimant if they had found or believed that he had committed any crime. [underlining added, footnote omitted]
[4] Mr. Koken's testimony before the RPD may be summarized as follows.
[5] In March 1999, he started his employment at Zafer, where he was involved with general office help, arranging meetings, inviting guest lecturers, and assisting with fund raising. Zafer regularly attended book fairs and would send a list of books it hoped to showcase to the government organization which was in charge of the book fairs. In 1999-2000, Mr. Koken and Zafer noticed that Zafer was being allotted much less space than before, and secular publishing companies were being allotted more space. The government also started rejecting certain books for illogical reasons like the book's title or cover. Mr. Koken believes that this was an attempt by the government to discourage or exclude religious publications from the book fairs.
[6] Mr. Koken testified that, in June 2000, there was a raid by plain-clothed policemen on the house where he was living and where about 15 people were holding a meeting. Everybody was taken to the police station, and Mr. Koken was detained in a room by himself. He was questioned by three men who became aggressive, beating Mr. Koken on his head and face. The questions related to his past, relationships, finances, employment, and his involvement with religion. Mr. Koken was released the following morning without being charged with anything. He later discovered that the other men who were arrested were released at midnight and had not been beaten.
[7] Mr. Koken went on to testify that he was arrested in July 2000 by four plain-clothed police officers at the Zafer offices, after they questioned him about the publications he was selling and whether he was paying taxes to the government. Once at the police station, he was interrogated about subscriptions, business owners who were donating to Zafer, and how the system of bursaries and financial assistance to students worked. Mr. Koken swore that, during this interrogation, he was beaten with batons, his hair was pulled and they spit in his face. His little finger was hit and he could not move it for a week. The officers told him that he should get the message this time, that this was not a game, and they were not playing with him.
[8] Mr. Koken stated that, after this incident, officers visited the Zafer offices regularly to audit files and look for information about the organization's benefactors. Zafer's activities were increasing, and more people were interested in donating to the organization, but the harassment by the state authorities was continuous as they were trying to determine the sources of the organization's support.
[9] Mr. Koken testified that he was detained again in August 2001 for two days. The officers wanted information regarding donations by businessmen: how much they donated, what their motivation was, etc. He was severely beaten when he refused to give this information. He was released after two days with no charges laid against him. Mr. Koken said that he could not go to the hospitals because they were government run and it was a government agency (the police) who had beaten him. He could not go to a private hospital because they were too expensive and, in any event, their reports are not valid in court. Further, Mr. Koken swore that the police told him not to try to get documentation, and all hospitals have a police officer on duty who sees patients even before the doctor.
[10] After this incident, Mr. Koken returned to the city where he was born to get his passport and visit his family. His family agreed that he should leave the country for his safety. Mr. Koken stayed with his family for a week until he decided where to go, and after considering options and advice from others, he decided to go to Canada. He obtained a student visa on September 24, 2001. In the meantime, he was detained again in mid-September. Officers entered the Zafer offices and entered the prayer room where he was praying. Again, Mr. Koken was questioned and beaten. The questions were related to how much money the organization made monthly due to donations, and how the organization dealt with its finances. Before he was released, Mr. Koken was told by the officers that this was just training and next time it would be extremely different.
[11] Mr. Koken then left Turkey and travelled to Canada where he made his claim for protection.
[12] In light of Mr. Koken's evidence, the reasons of the RPD are problematic in a number of respects.
[13] First, the RPD does not deal in a satisfactory way with the discrepancy between the port of entry notes and Mr. Koken's oral testimony with respect to the number of times he was arrested. The panel draws an unspecified negative inference and found "his account of the number of times he was arrested and his explanation not to be credible". It is not clear from this what facts the panel found had been established. Did it accept he was arrested at all? As a matter of law, credibility findings are to be given in clear and unmistakable terms. Aspects of a witness' testimony which are found not to be credible are to be specifically identified and the reasons for the rejection of the testimony are to be intelligibly explained. Notwithstanding the vague reasons of the panel, counsel for the Minister agreed that it appears that the RPD accepted that Mr. Koken was arrested twice.
[14] Second, the RPD provides no analysis for its conclusion that the treatment Mr. Koken was subjected to at the police station amounted to harassment and not persecution.
[15] The line between persecution and discrimination or harassment may be difficult to establish in a particular circumstance. However, the identification of persecution is a question of mixed fact and law. Where the RPD proceeds "with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein" the intervention of the Court is not warranted unless the conclusion reached by the RPD is unreasonable. See: Sagharichi v. Canada(Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.) at paragraph 3. As the identification of persecution is a mixed question of fact and law, such a finding is reviewable on the standard of reasonableness simpliciter. An unreasonable decision on this standard is one that, "in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it". See: Canada(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56.
[16] As to the nature of conduct which rises to the level of persecution, as my colleague Madam Justice Tremblay-Lamer noted in N.K. v. Canada (Solicitor General) (1995), 107 F.T.R. 25 (T.D.) at paragraph 23:
The factual situations which the courts have found to constitute persecution generally involve acts of violence which are often accompanied by death threats. A series of such hostile acts over a long period of time, often affecting the claimant's physical safety, clearly cannot be described simply as discriminatory.
[17] Applying these principles, as noted above, no reasons were provided to support the panel's conclusion that the conduct at issue amounted to harassment and not persecution. There was evidence before the RPD of acts of violence, occurring from June 2000 to September 2001, accompanied by a final threat that "this was training and that next time it would be extremely different". Faced with that evidence, which the RPD neither adverted to nor expressly rejected, its conclusion that the treatment was harassment and not persecution was unreasonable because it is unsupported by any reasons, let alone reasons that stand up to a somewhat probing examination.
[18] The third problematic aspect of the reasons of the RPD is its failure to provide any analysis or reasons to support its finding that the events described by the claimant, even cumulatively, do not amount to persecution. It is an error of law for the panel not to consider the cumulative nature of conduct directed against a claimant. See: Bobrik et al. v. Canada(Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13 (T.D.). Here I note that the panel's ambiguous credibility finding, as it touched on the number of incidents, makes it difficult to properly consider the cumulative effect of the conduct.
[19] Finally, it is problematic that the RPD appears to diminish the effect of the police behaviour because "I find it reasonable to infer that the police would have, on a balance of probabilities, brought charges against the claimant if they had found or believed that he had committed any crime". This is problematic because there is no requirement at law that a person be charged in order to be persecuted by the police, so that the RPD appears to have had regard to an irrelevant consideration to the extent it diminished the effect of the police conduct because it did not include the laying of any charge.
[20] For all of these reasons, the application for judicial review will be allowed.
[21] Counsel posed no question for certification, and I agree that no question arises on this record.
ORDER
[22] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the RPD, dated December 7, 2004, is hereby set aside.
2. The matter is remitted for reconsideration before a different panel of the RPD.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10432-04
STYLE OF CAUSE: YETIS KOKEN V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: JUNE 15, 2005
REASONS FOR ORDER AND DAWSON J.
ORDER
APPEARANCES:
OMAR SIDDIQUI FOR THE RESPONDENT
SOLICITORS OF RECORD:
WILDER WILDER & LANGTRY FOR THE APPLICANT
WINNIPEG, MANITOBA
JOHN H. SIMS, Q.C.