Date: 20021126
Docket: IMM-5896-01
Neutral Citation: 2002 FCT 1222
Ottawa, Ontario, November 26, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
MEHMET AKTAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the Immigration and Refugee Board's [Board] decision of July 10, 2001, wherein it determined that the applicant is not a Convention refugee. This application is made pursuant to section 82.1 of the Immigration Act.
FACTS
[2] The applicant is a Turkish citizen of Kurdish origin. He was born on February 3, 1972.
[3] The applicant based his claim for refugee status on fear of persecution in Turkey because of his religious and ethnic identity and political opinion. At the hearing, the applicant also raised a new point in that he does not want to serve in the military.
[4] In his Personal Information Form, the applicant stated that he experienced several incidents because of his religious and ethnic background. In its decision, the Board focussed on the first incident and the last two. The facts pertaining to these incidents are as follows:
(a) On March 21, 1995, the applicant took part in the Kurdish Newroz holidays, and held a sign that read "democracy for Kurds." He was arrested, detained for two days and given electric shocks. He was warned not to get involved in such incidents again.
(b) In February 1999, the Kurdish political party, HADEP, was planning an event to educate Kurds of their lifestyle in Turkey. The HADEP chairman for the town of Kulu invited the applicant to join him in seeking permission for the event from the sub-Governor's office. Permission was denied and after a heated exchange, the applicant and HADEP chairmen were arrested and detained. The applicant states that he was warned and mistreated.
(c) The incident that prompted the applicant to leave Turkey and come to Canada occurred in March 2000. The applicant was sitting in a coffee shop owned by a Kurd and was speaking with a friend in Kurdish. Three young people began to insult him and one stabbed his friend with a knife. When the applicant called home he learned that, based on information provided by the coffee shop owner, the police had come looking for him. Immediately after, he made arrangements to escape Turkey.
ISSUE
[5] Did the Board err in law in its credibility assessment by drawing unreasonable inferences with respect to the evidence before it?
ANALYSIS
[6] The applicant suggests that the Board was misconstruing and misstating the evidence regarding his involvement with HADEP.
[7] The respondent suggests that the Board did not contradict the applicant's clear evidence that he could not officially join HADEP as he was a student.
[8] In fact, the Board asked many questions on the applicant's involvement with HADEP; trying to have more details. The answer was:
I was a student and because of that I was a Kurd; I used to frequent the place, but I was not formally connected with them. I was just frequenting the place.
(Unofficial transcript (applicant's record, p. 26))
[9] In my view, it was open to the Board to question the real profile, and the responsibility of the applicant with HADEP, and thus could find implausible, even incredible, the fact that the applicant would accompany the chairman to an important meeting, even if he knew the chairman since 1995.
[10] Regarding the finding that the applicant remained in Kulu and attended the Newroz celebration in March 1999 even after his alleged detention in February 1999, I think that, again, it was open to the Board to find that incident unbelievable.
[11] The applicant suggests that the Board's findings regarding the March 2000 incident at the coffee shop is a clear misstatement of the evidence. A review of the transcript indicates that the applicant is partly right on this point.
[12] Indeed, there is no supporting evidence that the coffee shop owner turned in the applicant and his friend to the police, for the reasons mentioned at pages 2 and 3 of the decision.
[13] Nevertheless, in having carefully reviewed the facts surrounding this incident, the transcript, and the decision, I cannot conclude in the fatality of the error.
[14] In Martinez v. Canada [1981] F.C.J. No. 1132, Heald J. for the Court of Appeal held:
While not necessarily agreeing with all of the inferences which the Board has drawn from the evidence before it, it is our view that those inferences and the Board's conclusions were reasonably open to it on this record and that the applicant has not demonstrated any reviewable error. For these reasons the Section 28 application is dismissed.
[15] I also disagree with the applicant's suggestion that the Board's finding that it was implausible for the police to take this occasion (i.e. the event at the coffee shop) to pursue the applicant was unreasonable. Although one could have a different finding of fact, it was nevertheless open to the Board to reach that conclusion.
[16] The Board also found insufficient evidence with respect to the applicant being subjected to persecution because of the compulsory military service. I should point out that the applicant mentioned that the military service was his first motivation of fear if he had to return to Turkey.
Counsel: Whom do you fear in Turkey? Claimant: First reason is that I'm afraid of serving in the military because the military is oppression people, and I don't want to be part of this, and particularly they oppress the Kurdish people. Secondly, they accused me of aiding the PKK they assume that my visits to HADEP is almost like being a member of an illegal organization. Counsel: Who believes that? Claimant: I believe that. When I go back I don't have any safety, my life is in danger, and I won't be going to the military."
(Tribunal record, pp. 189-190)
[17] In my view, the applicant has failed to convince the Court that the Board has made any reviewable errors justifying the Court's intervention.
ORDER
- Therefore, for the above reasons, this application for judicial review is dismissed.
- No serious question will be certified.
"Pierre Blais"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5896-01
STYLE OF CAUSE: Mehmet Aktan v. MCI
DATE OF HEARING: November 13, 2002.
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND ORDER BY: Blais J
DATE: November 26, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Negar Hashemi
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent