Date : 20050711
Docket : IMM-5848-04
Citation : 2005 FC 956
OTTAWA, Ontario, this 11th day of July, 2005
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN :
ELENA GRIBOVSKAIA
BAHADIR CICIEK
ALEXANDRE GRIBOVSKI
MELISSA CICIEK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDERAND ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division (RPD) dated June 1, 2004, wherein the claim of Elena Gribovskaia, Bahadir Ciciek, Alexandre Gribovski and Melissa Ciciek, the Applicants, was rejected, the RPD having concluded that they were neither Convention refugees nor persons in need of protection.
[2] The female Applicant (Elena) is a Christian Orthodox citizen of Russia. Her husband, the male Applicant (Bahadir), is a Kurdish and Alevi, citizen of Turkey. The minor claimants, Alexandre is the son of the female Applicant and is a citizen of Russia and Melissa is the daughter of both adult Applicants and is a citizen of Turkey. The claims are joined and relied on the narrative of the male Applicant.
[3] The male Applicant alleged that because of his Kurdish-Alevi background, he was harassed in primary school. His father was accused of being an activist assisting illegal Kurdish groups and was sentenced. He stayed several years in prison. In 1979 and 1980, the Applicant and his brother were arrested, detained and tortured by the Special Team. The Applicant moved to Mersin in 1980 to study at university where he received a diploma in hotel management. While attending, he had some problems with the police and fundamentalist students because of his Kurdish-Alevi background. He had to quit one job because the police requested it.
[4] On May 1989, the Special Team searched his house and found periodicals and books about Alevis. The Applicant was detained for three to four days and tortured. After his release, he was fired from his night job.
[5] In 1996, he met the female Applicant. They agreed to marry but were precluded to do so because of the religion and nationality of the female Applicant. They had to bribe someone in order to get married on December 8, 1997. The male Applicant alleged that the Turkish authorities, as well as his family, pressured his wife to change her name and religion.
[6] The female Applicant had been trained as a travel agent in Russia and following a number of conducted tours in Turkey she determined to remain and was periodically employed in the hospitality industry in her adoptive country.
[7] After her wedding, the female Applicant applied for Turkish citizenship on three occasions but was refused because her religion and her name were not Islamic. While she was living in Turkey, she maintained her temporary resident status which had to be renewed every 3 to 6 months and she could not work (except for short temporary work permits in 1996-1999).
[8] On March 21, 2002, the male Applicant was arrested at a Newroz celebration and detained. He was threatened with reprisals if he participated again.
[9] In June 2002, during a spot check, the female Applicant was harassed by the police and accused of being a Russian prostitute. She was taken to the hospital for a medical examination to see if she had any sexual related illness. She was subjected to intrusive blood tests. Her son had difficulties at school during 2002 because of his nationality.
[10] In July 2002, while visiting the male Applicant's hometown, she was harassed and hit because she was Russian. The couple was detained. After that incident, they decided to leave. The male Applicant applied for a visa at the Russian Consulate but this was refused. Then, they applied for and obtained a US visa. The left Turkey for the US on November 23, 2002 and arrived in Canada on November 30, 2002.
[11] At the outset, the RPD explained that since the female Applicant and her son are Russian citizens with no status in Turkey and are not claiming against Russia, her claim against Turkey cannot proceed.
[12] With respect to the female Applicant's testimony, even if the RPD did not accept some of her inferences and conclusions, it nevertheless found that she was a credible witness who testified in a straightforward manner. The RPD concluded that :
"the panel finds that the police spot check are a fact of life in Turkey. As well, the police and the ordinary citizens are known to stereotype Russian women as prostitute (...) Persons suspected of being prostitutes are required to submit to medical checks. While the panel does not doubt that the principal claimant and the male claimant experienced harassment and discrimination because of her ethnicity and religion, the panel does not find, based on an analysis of the totality of the evidence, that such treatment is persecutory on a Convention ground (...)"
[13] The RPD indicated that there was no evidence that the female Applicant experienced any difficulties with the Turkish authorities or citizens prior to her marriage.
[14] According to the RPD, there is no credible evidence that the Turkish citizenship process is persecutory; the Applicants did not demonstrate that they had fully explored the policies and procedures for the female Applicant to obtain citizenship in Turkey or with respect to spousal sponsorship regulations for a returning citizen to Russia. The RPD further explained that the female Applicant should be allowed to sponsor her husband despite the complicated requirements of Russia. It indicated that there was no credible evidence to establish that further inquiries were made beyond attempting to obtain a Russian visa for the male Applicant.
[15] The RPD determined that while the male Applicant's narrative stated that the authorities and his family were insisting that his wife change her religion and name, there was no corroborative evidence; official documents issued by the State did not contain a Turkish name. Also, the female Applicant's evidence did not convince the RPD that she was pressured to change her name and religion.
[16] According to his Kurdish-Alevi profile that allegedly brought him to the attention of the authorities, the RPD found that he was a victim of discrimination and harassment in his early years but that did not amount to persecution.
[17] Concerning the alleged events for the period between 1979 to 1996, the RPD found that his evidence was vague, inconsistent and not credible. The male Applicant could not explain why the authorities had an interest in him. His profile is inconsistent with that of interest to Special Teams. Also, the RPD determined that the male Applicant embellished his evidence in order to reinforce his refugee claim. With respect to the alleged arrest at a Newroz celebration in 2002, the RPD did not believe his story nor did it believe the occurrence of July 2002 as alleged. The RPD did not accept that they were threatened and treated so violently that they had to leave.
[18] The RPD stated that "there is no official discrimination based upon religious persuasion". In support of this proposition it stated that, since religious attire is banned from public buildings and institutions, the female Applicant's fear that she could be forced to wear hijab and long-sleeves is not well-founded. Moreover, there is no risk to the male Applicant in Turkey because he is a returning asylum seeker.
[19] Finally, the RPD concluded that both Russia and Turkey recognize the concept of family and there is no evidence that the Applicants were persecuted in Turkey because of their mixed marriage and that the citizenship requirements in both countries were persecutory. The RPD further found that the male Applicant should return to Turkey in order to pursue his options to immigrate to Russia.
[20] The Applicants submit the following issue:
Was the decision of the Board reasonable given the cumulative effect of the evidence?
[21] First, the Applicants submit that when an Applicant swears the truth of certain allegations, there is a presumption that they are true. They further submit that a tribunal should not be over-zealous when attacking the credibility of an Applicant, especially when he testified through an interpreter, and that the tribunal should make a distinction between the cases where there are contradictions and the ones where the testimony adds further details to an initial statement.
[22] The Applicants argue that the conclusion of the RPD that the treatment experienced by the female Applicant did not constitute persecution is not sustainable. They submit that the RPD found her to be credible and accepted that she suffered harassment because of her religion, nationality and gender. When the female Applicant was brought to the hospital for an intrusive blood test because she was suspected of being a prostitute, it is submitted that such treatment constituted persecution. Furthermore, it is argued that the RPD's suggestion that it was "a fact of life" and that being forced to undergo a medical examination did not amount to persecution on a Convention ground is ludicrous.
[23] The Applicants further allege that the RPD's decision is contradictory with its own analysis. It concluded that the Applicants experienced harassment and discrimination because of her ethnicity and religion and then wrote that it did not believe they were harassed nor questioned about their mixed marriage. It was not open to the RPD to conclude that it believes the female Applicant on the occurrences and then hold that it did not believe the male Applicant's version of the same incidents.
[24] The Applicants explain that the RPD failed to frame their claim as a family unit. They cannot go to Russia because the visa application for the male Applicant was rejected and they could not remain in Turkey since, to say the least, the female Applicant was persecuted and would not be given citizenship because of her refusal to changer her name and religion. Given that the option was for the family to separate, and having the right to live as a family under the International Covenant on Civil and Political Rights, they opted to come to Canada where they could be allowed to live together as a family without persecutory treatment.
[25] Basically, the Respondent argues that the assessment of facts and credibility are at the heart of the RPD's jurisdiction and are not a basis for judicial review. The reasons are detailed and the Applicants did not demonstrate that the RPD misapprehended any material aspects of their claims.
[26] The RPD believed the female Applicant but the decision was particularly harsh against the male Applicant. The decision stated that his testimony was vague and largely inconsistent for numerous alleged incidents.
[27] After a careful review of the tribunal record and the transcripts, I find that the conclusions of the RPD are reasonable in its evaluation of credibility of the male Applicant.
[28] The RPD's conclusion that the treatment of the Applicants was only discriminatory and constituted harassment rather than persecution can stand. They wrote at page 6:
"While the panel does not doubt that the principal claimant and the male claimant experienced harassment and discrimination because of her ethnicity and religion, the panel does not find, based on an analysis of the totality of the evidence, that such treatment is persecutory on a Convention ground as alleged by the male applicant."
[29] To amount to persecution, the female Applicant would have to show more consistency in the intrusion by the authorities. Only on one occasion was she forced to undergo a medical examination. It was not a consistent pattern that could be described as persecution.
[30] The RPD acknowledged that there is discrimination by both the police and citizens against Russian women who are suspected to be prostitutes. The fact remains that this unfortunate incident only occurred on one occasion.
[31] Turning to the fact that the RPD failed to analyse the issue of the separation of the family unit, the Respondent relied on the decision of Remedios v. Canada (MCI) ([2003] F.C.J. no 617, TD) and Casetellanos v. Canada (MCI) ([1995] 2 F.C. 190, TD). Though Justice Snider may have suggested the following at paragraph 12 of her decision in Remedios (supra):
"In order for the Applicants to establish that their right to live together as a family has been violated, they must establish, on a balance of probabilities, that they cannot live together in either India or Pakistan."
[32] There is no doubt that the case at bar is distinguishable in that the female Applicant and her son would be returned to Russia and the male Applicant and their daughter would be returned to Turkey. I am also satisfied that the male applicant exhausted all the possible avenues to enter Russia and obtain citizenship and that the female Applicant was denied permanent status in Turkey.
[33] There is no evidence however to suggest that the female Applicant would not be allowed to reenter Turkey, nor is there any evidence that she was prohibited in any way from exercising her right to continue practising her religious beliefs.
[34] There is still no underlying Convention ground. Family unity is not a concept recognized by Canadian Refugee law. The family as a "social group" basis for seeking Convention refugee status is based on the evidence of persecution of the family as a social group and not on the principle of family unity. It requires evidence that by reason of membership in a family, individuals may have a well-founded fear of persecution in the future if they are forced to return to their country of origin. If the male Applicant had been determined to be persecuted in Turkey and it was determined that the female Applicant was a dependent, perhaps one could have considered the separation of this family unit a contradiction of the principles underlying refugees. As Nadon, J. wrote in Casetellanos (supra):
"There has to be a clear nexus between the persecution that is being levelled against one of the family members and that which is taking place against others."
[35] While there may be some obiter and recommendations for the determination of refugee status under the Convention, it has not been adopted in Canada nor has the jurisprudence been extended to that degree.
"The definition of Convention refugee does not extend to the degree suggested by this Applicant. The onus is on the person seeking to be recognized as a Convention refugee to prove that he or she is a person falling within the scope of the definition. That is, that he or she has a well-founded fear of persecution for reasons enumerated within the definition."
[36] I have not been convinced that the findings of fact by the RPD in determining the status of these Applicants are not thoroughly and correctly reasoned, nor that it misapprehended any material facts of their claims.
ORDER
This application for judicial review is dismissed.
« Paul U.C. Rouleau »
JUDGE
OTTAWA, Ontario
July 11, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-5848-04
STYLE OF CAUSE : ELENA GRIBOVSKAIA, BAHADIR CICIEK, ALEXANDRE GRIBOVSKI, MELISSA CICIEK v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 14, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: July 11, 2005
APPEARANCES:
Mr. Ricardo Aguirre FOR THE APPLICANTS
Ms. Leena A. Jaakkimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ricardo Aguirre
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT