TB8-19890

RAD File / Dossier de la SAR : TB8-19890 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 12, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Ashley Erin Fisch Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] This is an appeal of a July 31, 2018 decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (Board) denying the Appellant's claim for refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). [2] The Appellant, a Turkish national, claims to fear persecution 1) from the Turkish authorities based on political opinion due to his wife's perceived association with the Gülen Movement1 and 2) from the Ülkü Ocaklari, a far-right ultranationalist party because of his refusal to commit fraud in relation to the XXXXofXXXX XXXX. [3] His claim before the RPD was made jointly with his wife and his two minor children. Because the Appellant came directly to Canada from Turkey, he is permitted to appeal to the Refugee Appeal Division (RAD) under the IRPA. However, because his wife and two children came via the US, a safe third party, they do not have the right to appeal to the RAD. I will not consider their claim in this decision. [4] For the reasons that follow I deny this appeal. FACTS AND ALLEGATIONS [5] The Appellant came to Canada to study English in XXXXandXXXX XXXX 2015.2 He returned to Turkey in late XXXX 2016. [6] Days after returning to Turkey, on XXXX XXXX XXXX 2016, the Appellant received a telephone call from XXXX XXXX XXXX XXXX, a city councillor, a member of the Nationalist Movement Party (MHP), and the XXXX of the Ülkü Ocaklari (a far-right ultranationalist party, which the Appellant also refers to as the Ülkü mafia). XXXX XXXX XXXX told him that Ülkü Ocaklari had some XXXX that they wanted his help selling to the XXXX XXXX where he worked as the XXXX XXXX. The XXXX was XXXX XXXX XXXX, but they wanted him to assist them in fraudulently selling it as XXXX-XXXX. If he did not help, he was told he would experience some "weird stuff." [7] The next day, on XXXX XXXX XXXX 2016, the Appellant's home burned down.3 A report on the fire from the Crime Scene Investigation Bureau concluded that the cause of the fire was unknown.4 The Appellant claims that he was told by Fire Department officials that the cause of the fire was a faulty power cord. However, he believes that the fire was a targeted attack linked to the previous day's threat from XXXX XXXX XXXX. [8] On XXXX XXXX XXXX 2016 the Appellant was confronted by men who told him that he must assist in the sale of the XXXX. One of the men invoked the name of XXXX XXXX XXXX. [9] On XXXX XXXX XXXX 2016, the Appellant told his boss about the request. His boss encouraged him to certify the XXXX XXXX XXXX XXXX as XXXX XXXX XXXX, noting that the Appellant had already had his home destroyed. The Appellant, however, refused to participate in the fraud. At some point, this boss told him that he had had a talk with the MHP member of parliament who controlled the XXXX black market and the man had requested him to encourage the Appellant to cooperate. [10] On XXXX XXXX XXXX 2016, on a business trip in Usak, the Appellant was assaulted by seven people, which led to him being hospitalized for two days. He made a complaint to the XXXX District Police on XXXX XXXX XXXX 2016. He was subsequently detained by the XXXX police for giving them an incorrect address. He was held for two days. [11] In XXXX XXXX XXXX 2016, the security chief of the XXXX XXXX told the Appellant that he had overheard a conversation involving the Appellant's boss, a pro-government businessman, and MPs who control the XXXX stock exchange. They had discussed the need to convince the Appellant to cooperate. This led the Appellant to decide to return to Canada. [12] The Appellant left Turkey on XXXX XXXX XXXX 2016, travelling to Canada on his existing student visa. He left his wife and two children behind. [13] On XXXX XXXX XXXX 2016 the coup attempt took place in Turkey. Later that month, his wife's employment was terminated because she was suspected of being part of the Gülen Movement. [14] On XXXX XXXX XXXX 2016, the police came to his father-in-law's home in Turkey seeking the Appellant. [15] On XXXX XXXXorXXXX XXXX XXXX 2016, his wife was required to go the public prosecutor's office where she, under duress, signed a document allowing the police to search for and arrest her husband. [16] On XXXX XXXX XXXX 2016, a summons was issued for the Appellant's wife, indicating that she was suspected of being a Gülen Movement member-though she was not made aware of this until later that month. [17] The Appellant's wife and two minor children left Turkey for the US on XXXX XXXX XXXX 2016, with a view to reuniting with the Appellant in Canada. (They had unsuccessfully applied for travel visas to Canada in XXXX 2016 and again in XXXX 2016.5) She and the children entered Canada at Fort Erie on XXXX XXXX XXXX 2016.6 [18] On XXXX XXXX XXXX 2016, an order was issued requiring that the Appellant be brought forcibly to the Prosecutor's office as a "Defendant." The reason for the order was said to be: "Turkish Penal Code No 5237 articles 86/2 [the offence of felonious injury], 53/1 [disqualification from use of certain rights], 125/1 [the offence of defamation]."7 DETERMINATIVE ISSUE [19] The determinative issue in this case is credibility. STANDARD OF REVIEW [20] In my review of the RPD's decision, I will apply a standard of correctness.8 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.9 ANALYSIS [21] The RPD outlined a number of credibility problems with the testimony of the Appellant and his wife. In addition, it expressed misgivings about some of his supporting documents. It concluded that the Appellant was not at risk due to his refusal to commit XXXX fraud. It also found that the Appellant's wife was not perceived by the Turkish authorities to be a member of the Gülen Movement and, consequently, that the Appellant was not at risk due to his family relationship to her. [22] The Appellant does not contest the RPD's finding that he was not at risk in relation to his refusal to commit XXXX fraud. Instead, he argues that the RPD erred in finding that his wife was not perceived by the Turkish authorities to be associated with of the Gülen Movement and that he was not at risk based on being a part of her family. He argues that the RPD misconstrued the objective evidence on the treatment of suspected members of the Gülen Movement and their families. He argues that some of the RPD's credibility findings were in error and he objects to the RPD's analysis of one of his supporting documents. 1. Credibility [23] Because the Appellant made his claim jointly with his wife and children, and both and he and his wife testified, the RPD considered both his credibility and that of his wife. While this appeal deals only with the Appellant, his claim is impacted by the credibility of his testimony and that of his wife given the joint nature of their claim. The RPD made the following credibility findings: a) The RPD found that the Appellant's wife's testimony about her employment was inconsistent with her documentation. She testified that she began to work at a XXXX XXXX in XXXX 2015. In her Basis of Claim (BOC) narrative, she stated she was fired from that position in XXXX 2016.10 However: i) in her visa application, she stated that she worked there from XXXX2015 to XXXX 2016;11 ii) in her Schedule A form, she stated she worked there from XXXX 2015 to XXXX 2016;12 and, iii) in her "Application to Change the Conditions, Extend my Stay or Remain in Canada as a Worker" form, she stated that she had worked there from XXXX 2015 to XXXX 2016.13 The RPD rejected her explanations: i) that she could not recall exactly but it was sometime in XXXXor XXXX 2015; ii) that there was a three-month probationary period that may have impacted on her evidence; and, iii) that the Appellant had prepared her documents for her. b) The RPD found that the Appellant's wife's evidence regarding her link to the Gülen Movement was inconsistent. First, she testified she had no connection with them-"I have no connection whatsoever"-and then she testified that she put her children in their schools and subscribed to a Gülen Movement newspaper (Zaman). c) The RPD found that the Appellant's wife's claim that she lost her job at the XXXX or was targeted by the Turkish government because of the mafia-the same people who were said to be targeting her husband-was speculative. d) The RPD found that the Appellant's wife's port of entry (POE) interview was inconsistent with her BOC narrative and his testimony. She stated at her interview that she was not threatened and only wanted to come to Canada to be with her husband, that the Appellant was forced out of his job (not, as he testified, that he quit), and that she had come to Canada because her family needed pensions, money, and healthcare from Canada. The RPD rejected her explanations: i) that this was due to faulty interpretation; ii) that she was panicked, afraid, and felt oppressed; and, iii) that it was likely that the interpreter had misled her. e) The RPD found that the omission from the Appellant's BOC narrative of the date when he claims to have received the call from XXXX XXXX XXXX(XXXX XXXX XXXX 2016) undermined his credibility. It did not accept his explanation that it was probably the fault of the interpreter who had been in a rush, which meant the Appellant did not have time to review the document. f) The RPD found that the omission in his BOC narrative of the threat said to have been made against him by XXXX XXXX XXXX on XXXX XXXX XXXX 2016 undermined his credibility. The RPD did not accept his explanations i) that there were many threats and that he did not feel able to elaborate on them and ii) that his narrative was already pretty long (and that, when translated to English, it had somehow been shortened). g) The RPD drew a negative inference from his failure to approach the police after his boss suggested to him that he should agree to XXXX the XXXX. h) The RPD found that his testimony regarding the possible involvement of the police with the mafia was speculative. i) The RPD found that the omission-with one exception-from his BOC narrative of his claim to have made multiple complaints to the police (which he testified about), undermined his credibility. [24] The Appellant argues 1. that credibility findings a), c), d), and g) above were in error and 2. that the RPD failed to consider the Appellant's forward-looking risk due to his wife's perceived membership in the Gülen Movement, including by failing to correctly assess the objective documentation. [25] I note that I have reviewed the RPD's uncontested credibility findings and, with one exception, I agree. Because these findings are not contested, I will not discuss them further in these reasons. I disagree with the finding, labelled item h) above. I do not find that a negative inference is warranted due to the Appellant's speculative claim that the mafia was able to influence the police-though I agree that the claim was speculative. Generally [26] The Appellant argues that because it was the cumulative effect of the RPD's credibility findings that led to it finding that the Appellant was not credible, and because some of the findings were in error, there was an insufficient basis for the RPD to have impugned the Appellant's credibility at all. [27] My role is to consider the entire record and arrive at my own finding in relation to the Appellant's claim. In doing so, I will re-weigh all of the evidence, including any credibility problems. Timing of the Appellant's wife's employment (item a) above) [28] The Appellant argues that the time of the Appellant's wife's employment at the XXXX is not in dispute and has no bearing on the outcome of the case; as such it is peripheral and irrelevant. [29] Whether the Appellant's wife stated she started her work at the XXXX in XXXX or XXXX 2016 is insignificant. The payroll records from her employer shows that she started work at the XXXX XXXXinXXXX XXXX XXXX XXXX 201514-i.e. XXXX XXXX XXXX XXXXmonth of XXXX commenced. However, it is troubling that in some of her documents she stated she started her work in XXXX-fully nine months before the payroll records shows she started. More troubling still is the disparity between her claim that she stopped working in XXXX 2016 (when she was fired) and the claims in two of her documents that she stopped in XXXX 2016. The Appellant's wife's claim to have been dismissed in XXXX 2016, after the failed coup, is an important element of her claim that she was perceived to have been associated with the Gülen Movement. Given that her alleged association with the Gülen Movement is at the heart of this claim, the date when she stopped working is far from peripheral. [30] I find that neither of her explanations addresses her inconsistencies as to when she started working (whether it was XXXX 2015 or XXXX XXXX XXXX 2015) or when she stopped working. A three-month probation period has no bearing on either. Moreover, her claim that her husband filled out her form is not believable, given that she signed the forms. In the case of her Schedule A form, the interpreter made a formal declaration that he or she had interpreted the contents of the form to her and the Appellant's wife made a "solemn declaration" that its content was "truthful, complete and correct."15 [31] I find the unexplained inconsistencies in the Appellant's wife's evidence undermine her credibility and, consequently, that of the Appellant. The Appellant's wife's speculation about mafia involvement in her losing her job (item c) above) [32] The Appellant argues that while his wife's testimony about a link between the mafia that was allegedly pursuing her husband and her loss of employment may be speculative, it is "highly plausible, logical and realistic given the country condition evidence...".16 In particular, he points to the evidence in the objective documentation showing that there have been cases of people "ratting out" suspected Gülen Movement members. It is, he argues, "within the realm of possibility" that the mafia reported his wife as a member of the Gülen Movement to punish her. [33] I agree with the RPD that the Appellant's wife's testimony about the involvement of the mafia in her dismissal from the XXXX is speculative. Whether or not it is possible, given the evidence that some have "ratted out" members of the Gülen Movement, is not the issue. The question is whether it is likely and I find, based on the Appellant's wife's evidence, that it is not. There is no evidence that the mafia, angry at the Appellant for not having participated in a plan to sell XXXX at an XXXX XXXX, would have had the desire or the means to ensure that his wife lost her job at the XXXX. [34] I note that the RPD drew a negative credibility inference based on her willing to speculate on this point. While it is, of course, the case that speculation by a claimant in sworn evidence may be ignored if it is unsubstantiated, even with the Maldonado17 presumption of truthfulness,18 I disagree that her speculative testimony is such that it warrants a negative credibility finding. The disparity between the Appellant's wife's POE interview and her current story (item d) above) [35] The Appellant argues that the RPD's credibility finding fails to consider that the summons against her was issued after her entry into Canada and so it is plausible that she did not feel risk at the time of the POE interview. [36] The summons against the Appellant's wife was issued on XXXX XXXX 2016; however, in a BOC amendment made ten days before the first session of her hearing, she stated that "[i]t was only once I was in Buffalo that I learned from my father that summons paper had been issued for myself concerning my membership/association with FETO."19 According to her evidence, she arrived in Buffalo on XXXX XXXX XXXX 2016, the day before she was interviewed upon entry into Canada at Fort Erie.20 Consequently, the Appellant's argument is factually incorrect. [37] Moreover, in the alternative, I find that the mere possibility that she did not feel at risk-without evidence from her to this effect-is unpersuasive. It would be speculative of me to find that she did not feel at risk at the time of her POE interview. [38] I note that the Appellant does not repeat the various arguments his wife put forward before the RPD. As such, I need not consider them. [39] I find that the Appellant's wife's story changed dramatically between when she was interviewed by Canadian border officials in XXXX 2016 and when she made her refugee claim. This change in her story is deeply concerning and seriously undermines her credibility and that of the Appellant. The Appellant's failure to report the fact that his boss encouraged him to commit fraud (item g) above) [40] I disagree with the RPD's reasoning on this finding. While the Appellant's failure to contact the police may undermine an effort on his part to rebut the presumption that state protection exists in Turkey-a fundamental aspect of a finding that someone is a Convention refugee, of course-I cannot see that, in the circumstances at least, it is an indicator that he lacks credibility. Surely credible people may opt not to seek state protection. 2. Supporting documents [41] The RPD also made the following findings in relation to his supporting evidence: a) The RPD found that an Order issued against the Appellant, dated XXXX XXXX XXXX 2016,21 was genuine and reliable. However, it held that there was no indication that it was issued at the behest of the mafia as the Appellant claimed. Nor did the Order-which referred to felonious injury, the disqualification from use of certain rights, and defamation-show any connection between the Appellant and the Gülen Movement. b) The RPD considered the Appellant's evidence meant to support his claim that he and his wife were perceived supporters of the Gülen Movement. This included: a copy of two credit cards;22 an unsigned, undated statement from the Appellant that he paid for the (Gülen Movement-affiliated) Zaman newspaper in 2011 and fees for his daughter at a Gülen Movement-affiliated school in 2012;23 and credit card statements.24 The RPD found that this evidence, which was old and did not directly link the Appellant with the Zaman newspaper or show that the school to which the fees were paid was Gülen Movement-linked, was insufficient to show that they would have been perceived by the Turkish government as being affiliated with the Gülen Movement. c) The RPD found that a summons against the Appellant's wife, dated XXXX XXXX XXXX 2016, indicating she was suspected of being linked with the Gülen Movement,25 was "genuine and reliable." Despite this finding, because of i) the Appellant's wife lack of credibility and ii) the country condition evidence (which tended to show that the Turkish government pursued high-profile and influential members of the Gülen Movement), the RPD found that the summons failed to support a finding that she would be at risk upon return due to her alleged links to the Gülen Movement. [42] The Appellant argues that the RPD's assessment of item c) above was in error. Because he does not contest the RPD's assessment of items a) or b)-nor, indeed, the RPD's assessment of any other supporting documents he provided-I will not discuss that assessment herein. [43] The Appellant argues that because the RPD found that the summons for the Appellant's wife indicating she was suspected of being linked with the Gülen Movement was "genuine and reliable," the RPD accepted that the Turkish state suspected her on this basis. It could not then find that, because of her credibility and the country condition evidence, she was not being targeted by them. He also argues that the RPD's decision was silent on the risk that the summons would cause to the Appellant or his wife. [44] I agree with the Appellant that this analysis is flawed. First, the RPD must look at the supporting evidence without having regard to its earlier credibility findings. As held by the Federal Court in Kabongo: "The Board cannot find the applicant's testimony not credible without consideration of relevant corroborative evidence, and then subsequently reject the supporting evidence because of the credibility finding."26 [45] Second, it is simply illogical for the RPD to make a finding that the specific evidence before it which shows that the Appellant's wife is suspected by the Turkish government of being associated with the Gülen Movement-i.e. the summons-is "genuine and reliable" and yet make a finding that she is not suspected of being so associated. The RPD may, of course, consider the objective evidence when deciding whether or not it finds the summons to be genuine or probative, but it cannot find it to be genuine and reliable and at the same reject its contents. [46] As to the Appellant's argument that the RPD was silent on the impact of the summons on the Appellant's claim or his wife's claim, I note that the RPD did make clear that the existence of the summons failed to support a finding that the Appellant's wife was at risk due to her actual or perceived association with the Gülen Movement27-though, as noted, I have found that finding to be illogical. Moreover, the RPD addressed the impact of the summons on the Appellant's claim when it found that he did not face a serious risk of persecution based upon his relationship with his wife.28 [47] Having rejected the RPD's analysis, it falls to me to reconsider the summons. I note that it is dated, signed, and stamped and that it specifically states that the Appellant's wife is suspected "of being a member of FETO/Parallel Government". I have no reason to doubt the document's authenticity and I consider it to be probative-though, of course, not dispositive-evidence of the Appellant's claim that his wife is a suspected member of the Gülen Movement. I will consider this favourably when I weigh the overall credibility of the Appellant and his wife. 3. Conclusion on credibility [48] As noted above, I have agreed with the most of the RPD's negative credibility findings about the Appellant and his wife. When I weigh those credibility findings against the supporting evidence (including, of course, the summons against his wife), I find that the Appellant and his wife are, overall, lacking in credibility. I find that the Appellant's claim that he is being persecuted by a political party or the mafia due to his refusal to participate in XXXX fraud is a fabrication and that neither he nor his wife are perceived by the Turkish authorities as being supporters of the Gülen Movement. 4. Risk to the Appellant based on his wife's perceived association with the Gülen Movement [49] The Appellant argues that the RPD misconstrued the country condition evidence in relation to the treatment of a family member of a person suspected of being a member of the Gülen Movement. Given my finding that the Appellant's wife is not suspected of being a member of the Gülen Movement, I need not address his arguments in this regard. CONCLUSION [50] I find that the Appellant is neither a Convention refugee under section 96 of the IRPA nor a protected person under subsection 97(1) of the IRPA. (signed) James Sloan James Sloan August 12, 2020 Date 1 Also know as the Hizmet movement, the Fethullahist Terror Organization (FETÖ), the Parallel State Structure (PDY), the Parallel State or the Parallel Structure. The Appellants use the term "Parallel Government" herein. 2 Exhibit RPD-1, RPD Record, Exhibit 21, at p. 853, para 7. 3 The report from the Crime Scene Investigation Bureau states that the fire took place on XXXX XXXX 2016 (Ibid., Exhibit 18, at p. 809). However, the Appellant's wife's Basis of Claim (BOC) narrative states that their home burned down on XXXX XXXX 2016 (Ibid., Exhibit 3, at p. 65, para 5). I note this ostensible inconsistency for the purpose of clarity and not as a further credibility finding. 4 Ibid., Exhibit 18, at p. 809. 5 Ibid., Exhibit 14, at p. 684. The Appellant's wife states in the BOC narrative that she applied for a Canadian visa in XXXX 2016 so that they could visit the Appellant during his original visit to Canada from XXXX 2015-XXXX 2016. (Ibid., Exhibit 3, at p. 66, at para 14). 6 In her Application to Change Conditions, the Appellant's wife stated that she had entered Canada on XXXX XXXX 2016 at Fort Erie. (Ibid., Exhibit 14, at p. 682). 7 Ibid., Exhibit 18, at p. 831. 8 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar, 2016 FCA 93, at para 103. 9 Ibid., at paras 69-74. See also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 10 Exhibit RPD-1, RPD Record, Exhibit 3, at p. 65. 11 See her Temporary Resident Visa Application, Ibid., Exhibit 9, at p. 286. The employer is said to be "XXXX XXXX XXXX XXXX XXXX." (ibid.). 12 Ibid., Exhibit 1, at p. 145. 13 Ibid., Exhibit 14, at p. 683. 14 Ibid., Exhibit 18, at pp. 814, 816, and 818 (translation). 15 Ibid., Exhibit 1, at p. 147. 16 Exhibit P-2, Appellant's Record, at p. 449, para 95. 17 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 18 In Hercules, Pedro Monge v. M.C.I. (F.C.T.D., no. IMM-1196-93), the Court stated: "I find that there did not exist an obligation on the part of the [Board] in this case to accept sworn allegations as true, even though credibility is not in question, where those allegations are in the nature of a speculative conclusion, and whether or not that speculation is well-founded." 19 Exhibit RPD-1, RPD Record, Exhibit 18, at p. 838. 20 Ibid., at p. 150, para 10(b). 21 Ibid., Exhibit 18, at p. 831 (translation). 22 Ibid., at p. 821. 23 Ibid., at p. 820 (translation). 24 Ibid., at pp. 822-828. 25 Ibid., at p. 829. 26 Tshibola Kabongo v. Canada (Citizenship and Immigration), 2012 FC 313 (CanLII), at para 11. 27 Exhibit RPD-1, RPD Record, at p. 32, para 118. 28 Ibid., at p. 33, para 124. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-19890 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français