TB7-20519

RAD File / Dossier de la SAR : TB7-20519 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 30, 2019 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal John Cintosun 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 OVERVIEW [1] The Appellant, XXXX XXXX XXXX, is a citizen of Turkey who appeals a decision of the Refugee Protection Division (RPD), dated August 29, 2017, that rejected his claim for refugee protection. [2] The appeal is allowed. The Refugee Appeal Division (RAD) sets aside the decision of the RPD and determines that the Appellant is a Convention refugee. [3] The role of the RAD is to intervene when the RPD is wrong in law, in fact, or in fact and law. The applicable standard of review is correctness, unless deference should be shown to the RPD because it enjoyed a meaningful advantage over the RAD.1 No issue was identified to which deference should be shown on this basis. [4] The Appellant did not submit new evidence and did not ask for a hearing in the appeal record. However, he applied to have new evidence admitted pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) after the perfection of the appeal. No application was made to have post-perfection documents admitted in accordance with Rule 29 of the RAD Rules.2 [5] An audio digital recording of the hearing and a transcript are both available. [6] The March 31, 2017 version of the National Documentation Package (NDP) for Turkey was used at the hearing. The current one was issued on March 29, 2019. Allegations [7] According to the Basis of Claim (BOC) form, the Appellant's parents are from a village in the City of Malatya in eastern Turkey. They are Kurdish Alevis who moved to Istanbul after the military coup that took place on September 12, 1980. They did so as a result of military operations that were conducted against Kurdish villages, including their own. The Appellant was born in Istanbul three years later. After graduation from secondary school, he enrolled at a university in the City of Isparta. He was at the office of the Democratic People's Party (DEHAP) in Isparta in March 2005 when it was attacked by religious fundamentalists and nationalists. The police arrived and arrested four people, including the Appellant. He was interrogated, beaten and released the next day. He returned to Istanbul after graduating in 2008. He attended a protest at Gezi Park in Istanbul on June 15, 2013, against the construction of a shopping center in the park. Although he was not arrested, he was affected by tear gas and treated at home with cream. He obtained a Canadian temporary resident visa in January 2015 for a visit that he did not make. [8] The Appellant states that he attended the Umraniye branch office of the People's Democratic Party (HDP) in Istanbul on September 8, 2015 when it was attacked by nationalists and by a radical Islamic group. He was detained, interrogated, beaten, and then released one day later. He did not leave the country at that point with his Canadian visa because he did not believe that he was in immediate danger, and because he had family and a secure job in Turkey. Things became worse after the failed coup attempt in July 2016. [9] The Appellant attended a peace rally on September 4, 2016, that had been organized by the HDP. He was detained when banners and placards were found in his car when he was leaving. He was interrogated, beaten, and then released one day later. Although he was bruised, he was cared for at home and did not seek medical treatment. [10] The Appellant was detained by police after leaving the Cekmekoy party office of the HDP on October 17, 2016. He was taken to an empty building, questioned, and beaten. He was next taken to the forest where his life was threatened and he was badly beaten. They wanted information about the HDP, other Kurdish groups, and his political activities. He was released about three hours after arrival in the forest. He left Turkey on XXXX XXXX XXXX 2016, because of this event. He made an inland refugee claim after his admission to Canada. His BOC form was completed with the assistance of counsel and an interpreter on December 28, 2016. [11] According to Schedule A, the Appellant was a supporter of the Democratic Society Party (DTP) from May 2006 to December 2009 and of the Baris & Demokrasi Partis (BDP) from January 2010 to April 2014. He was a member of the HDP from May 2014 until September 2016. He was also a member of the Alevi Cultural Association from May 2010 until September 2016. He was employed when he left the country. Global Case Management System (GCMS) notes show that he applied for his Canadian visa on December 31, 2014.3 [12] The Appellant filed support letters from his father, from a friend, from the HDP, and from the Toronto Kurdish Community and Information Centre. He also disclosed a copy of his HDP membership form, and membership card from the Pir Sultan Abdal Cultural Association.4 [13] According to his father, two police officers came to his home looking for the Appellant in March 2017. His friend confirms that he was with the Appellant at the peace rally on September 4, 2016, when the Appellant was detained. Photo identification documents were filed to establish the identity of the authors. His HDP application form was received on September 29, 2016. A letter from XXXX XXXX of the HDP dated March 15, 2017, confirms that the Appellant is a member of the party and has attended cultural events organized by the party. The letter from the Toronto Kurdish Community indicates that the Appellant speaks the Kurmanji dialect of Kurdish which is spoken in the northern and southwestern regions of Kurdistan. He has a good knowledge of Kurdish culture and local traditions. They confirm that, to the best of their knowledge, the Appellant is Kurdish. [14] The Appellant joined the Canadian Alevi Culture Centre in February 2017.5 He also filed photographs of himself participating in demonstrations in Toronto and Ottawa, as well as his attendance at the Newroz celebration in Toronto.6 RPD Reasons for Decision [15] The RPD accepted that the Appellant is an Alevi based on the supporting documentary evidence and his knowledge of Alevi beliefs. The RPD also concluded that more likely than not, the Appellant is Kurdish. [16] The Appellant testified that he was a member of the Democratic People's Party (DEHAP) for one year before it closed. However, the RPD drew an adverse credibility inference from the fact that he made no mention of this in Schedule A. [17] The RPD made an adverse credibility finding from the fact that the Appellant failed to provide a reasonable explanation for discrepancies in his evidence concerning when and where he began to support the Democracy Society Party (DTP). According to Schedule A, he became a supporter of the DTP in Istanbul between May 2006 and December 2009. On the other hand, he testified that he started to support the DTP after DEHAP was closed in November 2005. His testimony was not consistent with Schedule A. The RPD concluded that the Appellant was not credible with respect to his testimony about his association with the Democracy Society Party (DTP), either as a member or as a supporter. [18] The RPD drew an adverse credibility finding on the basis of inconsistencies concerning when he left the DTP. According to Schedule A, he supported the DTP from May 2006 to December 2009 in Istanbul. He stopped supporting the DTP in December 2009 when it closed. However, he testified that he was not politically active during his military service from July 2009 to February 2010. His statement in Schedule A that he was a supporter of DTP from July until December 2009 is not consistent with his testimony concerning not being politically after while performing XXXX service at that time. [19] According to Schedule A, the Appellant was a supporter of the BDP from January 2010 until April 2014. It also states that he performed XXXX service between July 2009 and February 2010. Given his testimony that he was not politically active during XXXX service, the January 2010 date is incorrect. [20] The RPD made an adverse credibility conclusion from his inability to provide direct and consistent testimony about when and why he joined the HDP. According to Schedule A, he became a supporter and member of the HDP in May 2014. However, he testified that he did so in January 2014. The RPD noted that, according to Schedule A, he was a supporter of the BDP until April 2014. It drew an adverse credibility inference from this inconsistency. In addition, the RPD concluded that he provided generalizations when asked why he joined the HDP. [21] The RPD was not satisfied with his answer concerning whether the HDP supported the Kurdistan Workers' Party (PKK), either culturally or politically. It concluded that, in addition to being unclear, his testimony changed and shifted during his testimony. [22] The Appellant provided an indirect and meandering response to the question of whether the HDP is loyal to Abdullah Ocalan, the leader of the PKK. [23] The Appellant's testimony about the support letter from the HDP was neither clear nor credible. He stated that the document contains few details because it was provided by the Beylikduzu branch, not the Istanbul district where he lived. The RPD was not satisfied that this adequately explains why there is no mention that he was ever detained, as alleged. [24] The RPD did not accept the Appellant's explanation with respect to why he did not leave the country earlier. The RPD did not consider his response to be reasonable, given that he alleges that he was detained and beaten three times, including when he had a valid passport and Canadian visa, but did not leave the country. [25] The RPD acknowledged that the Appellant participated in demonstrations against the Turkish government in Ottawa and Toronto. In addition, he attended the Kurdish New Year's celebration in Toronto. However, the panel concluded that there is no evidence that Turkish authorities have likely become aware of this conduct. [26] The RPD considered the Appellant's residual profile as a Kurdish Alevi and concluded that these groups face a degree of discrimination. However, the Appellant speaks fluent Turkish, lived in Istanbul, and was able to find work. He is not readily identifiable as being a Kurdish Alevi. His past experiences do not indicate that he was the victim of persecution on a cumulative grounds basis. Grounds for the Appeal [27] The Appellant submits that the principal issue for the RPD was credibility, and that the following errors were committed. [28] The Appellant submits that the RPD erred in drawing adverse credibility conclusions on the basis of inconsistencies between testimony and Schedule A. This document was completed at the same time as the BOC narrative that included additional details. The RPD failed to consider the documentary evidence as a whole. [29] The RPD erred in placing unreasonable weight on his testimony concerning when he joined the HDP. He officially joined in August 2016. Counsel acknowledged that the Appellant's testimony was drawn out and convoluted and that the RPD's assessment of this issue was correct. Nevertheless, it is clear that he joined after the attempted coup in 2016, regardless of the problems in his testimony. [30] The RPD erred in drawing an adverse inference from the Appellant's testimony that DEHAP was the only Kurdish party, despite the existence of the PKK. His explanation that he did not make reference to the PKK because it is considered to be a terrorist organization is reasonable. [31] The RPD erred in drawing an adverse credibility inference from a minor inconsistency concerning whether he joined the HDP in January or April of 2014. [32] The RPD misconstrued the Appellant's testimony about whether his Kurdish ethnicity would be evident from the name of his home village. Although the general public would not likely have heard of it, it would be known to security services. [33] The RPD erred in failing to give sufficient weight and assign sufficient probative value to the support letter from the HDP. Although it states that he is a member, it provides few details about his activities. The Appellant testified that he was required to join in the branch where he lived. This letter was issued by the branch where he worked. As a result, the person who wrote it did not have full knowledge of his level of involvement with the organization. This explanation is credible. [34] The RPD erred in drawing an adverse inference from the fact that he delayed in leaving Turkey, notwithstanding the fact that he had a valid passport and Canadian temporary resident visa. Subjective fear starts when the Appellant says that it starts.7 According to the Bah decision, delay in making a claim can only be relevant from the date as of which a claimant begins to fear persecution. [35] The RPD erred in concluding that Turkish authorities have not likely become aware that he participated in protests in Canada. The correct standard is whether there is a serious possibility of persecution upon return to Turkey. [36] The RPD erred in not believing the Appellant's testimony that he would continue to participate in anti-government protests if he returns to Turkey. He participated in political protests in Toronto and Ottawa, and attended Newroz (Kurdish New Year's) celebrations in Toronto. He testified that he would continue to do so if he returns to Turkey. [37] The RPD erred by ignoring evidence concerning his residual profile. The Appellant testified that he has been detained four times by authorities and mistreated. His father states in a letter that authorities are looking for him. The documentary eviden4ce establishes that HDP supporters are at risk of detention. [38] The RPD erred by failing to assess his residual profile as a Kurdish Alevi who faces discrimination that, on a cumulative basis, amounts to persecution. Evidence on Redetermination [39] The Appellant applied to have new evidence admitted and made additional submissions on March 18, 2019. Because this material was received after the appeal was filed, Rule 29 of the RAD Rules apply.8 [40] The claim was rejected on August 29, 2017, and the appeal record was filed on March 4, 2018. In response to the Federal Court decision, a letter was sent to the Appellant on February 18, 2019, asking for submissions concerning the documents that should form part of the appeal record. In addition, the Appellant was informed that he "may also include additional submissions in response to the Federal Court decision." Submissions and new evidence were received on March 18, 2019. Given that this material arrived after the rejection of the claim and after the perfection of the appeal, it must not be considered unless admitted in accordance with Rule 29 of the RAD Rules and Subsection 110(4) of the IRPA. [41] The Appellant filed the following three documents: i) An article dated April 10, 2018, entitled "Ankara prosecutor's office prepares summary of proceedings against eight HDP deputies."9 ii) An article dated April 10, 2018, entitled "Pro-Kurdish HDP deputy sentence to 7 years on terrorism charges."10 iii) An August 4, 2018 article entitled "Turkey's Erdogan says supporters of pro-Kurdish party will be held accountable."11 iv) A 2019 Reuters article entitled: "Former head of Turkey pro-Kurdish party sentenced to 4 years in prison for terrorist propaganda."12 v) A December 11, 2018 article entitled: "Dozens Arrested in Raids on Kurdish Party Headquarters in Turkey."13 vi) A December 25, 2018 article entitled: "Turkey continues to arrest pro-Kurdish HDP members."14 vii) Notice of Decision from the Refugee Protection Division dated February 21, 2017, that allowed the claims for protection of two people.15 [42] The Appellant has not asked for a hearing. He made the following submissions pursuant to Rule 3(3)(d)(i) with respect to the admissibility of the new evidence under subsection 110(4) of the IRPA. He submits that the situation in Turkey for Kurds, Alevis and HDP members has worsened. Because these changes took place after the rejection of the claim, the documents constitute new evidence pursuant to subsection 110(4) of the IRPA. In addition, two articles show that the HDP official who signed the supporting letter has been sentenced to over 7 years in jail for alleged terrorist propaganda. The Notice of Decision concerning his cousin's refugee claim serves to refute the RPD's conclusion that the Appellant is not a Convention refugee. [43] Because these documents and submissions were received after the receipt of the appeal record, it must not be considered unless it has been admitted pursuant to Rule 29 of the RAD Rules upon application made under Rule 37. Rule 29 requires that the RAD consider any relevant factors, including the document's relevance and probative value, any new evidence that it brings to the appeal, and whether the Appellant could, with reasonable effort, have provided it with the appeal record.16 Rule 37 stipulates how applications are to be made. Section 3 requires that the Appellant state the requested decision and provide reasons why this decision should be made. [44] The Appellant did not apply for these documents to be admitted pursuant to Rule 29. However, much of the content of a Rule 29 application was included in subsection 110(4) submissions. It is clear that the documents post-date the date of the perfection of the appeal record on March 4, 2018. The letter sent to the Appellant by the RAD solicited submissions with respect to which documents in the appeal record should be retained, in addition to submissions that respond to the Federal Court decision. It does not serve as a waiver of the requirements of Rule 29. However, Rule 53 gives the RAD the discretion to excuse a person from a requirement of a rule, provided that procedural fairness is respected. In this case, the Appellant provided all of the content required by Rule 29 in the subsection 110(4) submissions, except for an explanation with respect to why the documents and submissions were not submitted with the appeal record. The documents post-date the perfection of the appeal record, come from reliable sources and are of sufficient probative value to warrant their admission. These factors, together with the probative value of the documents, justify the admission of these articles, notwithstanding the Appellant's failure to make an application pursuant to Rule 29. As a result, the six newspaper articles are admitted. [45] However, the RPD Notice of Decision is inadmissible. This document alone provides no meaningful information about why his cousin's claim was allowed and what facts may have been considered that would make the Appellant a similarly situated person. Refugee status determination is highly dependent on the specific facts of a case. This Notice alone has insufficient materiality or probative value to be of assistance to the Appellant. [46] In summary, the newspaper articles and the Appellant's submissions with respect to changes of circumstances since the rejection of the claim and the perfection of the appeal are admitted. [47] The Appellant also made additional submissions without seeking to have them admitted pursuant to Rule 29. Many of the points raised had already been identified in submissions filed with the appeal record. No explanation was provided with respect to what should be done with the first submissions and why they needed to be reformulated. In addition to failing to apply for the admission of these new submissions in accordance with RAD Rule 29 and Subsection 110(4) of the IRPA, the Appellant has failed to explain why this was done and point out what specifically is different from the submissions in the record. These submissions are inadmissible. As a result, this assessment will be based on the Appellant's submissions concerning errors committed by the RPD as contained in the appeal record. ANALYSIS [48] The RDP conducted a very detailed analysis of the inconsistencies between Schedule A information and oral testimony. The Appellant's submission that the RPD failed to account for details in the BOC narrative is incorrect. According to the narrative, the Appellant was detained when he was at the DEHAP office several days after the Newroz celebration in March 2005. He went there to meet friends and socialize with fellow Kurds. No mention is made in Schedule A to any association with DEHAP. Although the BOC narrative mentions DEHAP, it does not allege any support or membership with this organization. The RPD did not ignore evidence in the BOC narrative. [49] The RPD noted inconsistencies with respect to when he became associated with the DTP (May 2006 in Schedule A, or November 2005 in testimony), when he left the DTP (December 2009 in Schedule A, or July 2009 when he started his military service), when he joined HDP (May 20014 in Schedule A, or January 2014 in testimony), and when he left the BDP (April 2014 in Schedule A, whereas he testified that he joined the HDP in January 2014). [50] The RPD noted that the Appellant signed Schedule A and indicated that it was truthful, complete and correct. The interpreter signed a declaration that states that the document was faithfully and accurately interpreted to him. Given these factors, the RPD did not accept his explanation that he does not know how these mistakes were made in Schedule A because the interpreter filled it out. [51] The Appellant made an inland claim and signed the BOC and Schedule A on December 28, 2016, with the services of an interpreter. They are not port-of-entry notes that are subject to Federal Court caution concerning their use. The RPD correctly identified the inconsistencies and concluded that his explanation is not reasonable. The RPD did not err in drawing adverse inferences from these inconsistencies. [52] A review of the Appellant's testimony shows that RPD's observations about the vagueness of the Appellant's testimony about when and why he joined the HDP are correct. [53] The RPD noted that the Appellant stated that his last detention was in October 2016 after he left his home branch (Cekmekoy) of the HDP. He did not adequately explain why the co-chair of the branch where he worked, but was not a member (Cekmekoy) would be aware of the fact that he was a member and attended cultural events, but not that he ever been detained. The RPD did not err in this conclusion. Although this is sufficient to establish that HDP party branch officials were unaware of his detentions, these factors are insufficient to reject the authenticity of the document itself. The RPD erred concluding that it is likely trustworthy. [54] A review of oral testimony confirms the RPD's conclusion that the Appellant's testimony was vague in places and shifting in others. In particular, his testimony about when he joined or became a supporter of what party was inconsistent. This is sufficient to justify the conclusion that the Appellant likely embellished his testimony about his level of political involvement in Turkey. However, it does not rebut the presumption that the letter from the HDP contains accurate information about him taking out membership and attending Kurdish cultural events. Absence of reference to detentions is not problematic, given that he had no official role in the party and attended events on his own. [55] The Appellant's testimony about having been detained at the DEHAP office in 2005 while he was at university after attending the Kurdish New Year's celebration is consistent with his interest in Kurdish cultural events. There is no indication of political involvement or embellishment. It was at the hearing that, for the first time, he alleged that he had been associated with this party for one year. This likely embellishment is insufficient to conclude that his BOC narrative is not trustworthy on this issue. Notwithstanding this conclusion, the Appellant was able to continue his studies without further incident. [56] The Appellant stated that he was present in June of 2013 at a protest concerning the construction of a shipping centre at which time he was exposed to tear gas. The RPD had no good reasons to doubt this. On the other hand, it is not indicative of any interest in the Appellant on the part of authorities. [57] The Appellant indicated that he went to the HDP party office in September 2015 to meet friends and socialize. He was detained by police after it was attacked, and then released one day later after questioning. According to his narrative, his purpose in attending the building was social, not political. [58] The Appellant stated that he attended a peace rally organized by the HDP on September 4, 2016, with thousands of Kurds, Alevis and leftists. Authorities found banners and placards in his car and arrested him. He was interrogated, kicked, punched and hit with a truncheon, and then released after one day. This took place after the coup attempt of July 2016. The Appellant provided a statement from a friend who attended this event with the Appellant. It is at this point that the question of subjective fear arises for the first time, the month before he left the country with a valid passport and Canadian visa. [59] The Appellant states that was at the HDP branch office in his home district of Cekmekov on October 17, 2016, when he says that he was detained while walking to his car, taken to an empty building and then to a forest. He was again assaulted and his life was threatened. He then took steps to leave the country. According to a letter from his father, authorities are now looking for him. [60] The RPD was correct in concluding that the Appellant was not a reliable witness during the hearing. Although this is sufficient to discredit the embellishments, it does not justify a general finding of an overall lack of credibility. The RPD erred in rejecting the other evidence. [61] The RPD was correct in concluding that the evidence does not establish that his activities have likely come to the attention of Turkish authorities. The Appellant is not correct that the RPD used the wrong legal test. Findings of fact are made on a balance of probabilities standard, and risk assessments are based on the standard of more than a mere possibility, a good chance, or a serious possibility of persecution. The issue is whether or not authorities have likely become aware of his political activities, and if so, whether there is a serious possibility that he would be persecuted as a result. The Appellant is incorrect that the applicable test is whether there is more than a mere possibility that authorities are aware of his activities. [62] The Appellant testified that he would continue his political protests should he return to Turkey. The RPD looked to his past political activities in Turkey and used that to reject the reliability of his statement to this effect. Given his lack of political activities in the past, the RPD concluded that he would not likely engage in them if he goes back to Turkey. This testimony came out for the first time during oral testimony which was tainted by embellishments. The Appellant attended a peace rally organized by the HDP while in Turkey. He has demonstrated that he has been a non-active supporter of various Kurdish political parties over the years, but without a significant level of contribution to the activities of the parties and without clear start and end dates. His support appears to have been more personal than institutional until he became a member of the HDP. [63] The RPD accepted that the Appellant is a Kurdish Alevi. The RPD erred in rejecting all of his testimony and supporting evidence on the basis of embellishments in testimony. The Appellant has a profile as someone whose cultural and political sympathies lie with the HDP and other pro-Kurdish political and social organizations. He was a member of the HDP who attended cultural events and associated with other members. On one occasion he participated in a peace rally and came to the attention of authorities. He has participated in protests against the Turkish government in Canada. The RPD erred in ignoring this profile. [64] The documentary evidence establishes that the current Turkish government is intolerant of criticism. The Appellant cites a Response to Information Request (RIR) in support of submissions concerning risk to Kurds and Alevis after the failed coup of July 20, 2016.17 A state of emergency was declared and pro-Kurdish and other opposition groups were subject to a crackdown. The Kurdish population suffered disproportionally from the consequences of state reaction to the coup attempt. It became easy to arrest Kurds and incarcerate them without due process. Eleven HDP members of Parliament were arrested in November 2016 on charges of terrorism. Raids have also been conducted against HDP offices. The Kurdish population in larger centres such as Istanbul live in fear and uncertainty. Although Kurds are safe if they conceal their identity, this can prove difficult for Kurds who speak with a particular accent. There is on-going stigmatization of Kurds in Turkey. On the other hand, millions of Kurds who are not politically active live normal lives without discrimination in centres such as Istanbul. The state of emergency also led to the closing of a number of radio and television stations that were popular among the Alevi, and feelings of insecurity in Alevi neighbourhoods. [65] The Appellant has filed updated submissions on country conditions that are based on the December 21, 2018 NDP.18 Reference is made to 2017 reports from Freedom House and Human Rights Watch, together with the new evidence filed on appeal. As previously stated, these updates are admissible. [66] A revised NDP was published on March 29, 2019. Information about Kurdish political parties can be found in a British Home Office 2018 report in the current NDP.19 The HDP reported in March 2017 that 5,471 of the party's officials had been detained. The HDP was formed in October 2012 as the result of a merger of 20 socialists parties, and its first congress was held in October 2013. It was the principal Kurdish party in the June and November 2015 elections, winning about 10.75% of the popular vote and 59 seats in the November election. After the cease fire with the Kurdistan Workers' Party (PKK) ended in 2015, the government targeted the HDP on suspicion that it acted as a proxy for the PKK. A number of HDP members of Parliament lost their immunity and were arrested on charges of either terrorism or absenteeism. As of June 2018, 25 of 59 HDP MP's who were elected in 2015 had been arrested. Thousands of party members had been detained since 2016. [67] The British Home Office has also published a report that outlines the situation of Kurds in Turkey.20 Sources differ with respect to demographics, but Kurds constitute between 15% and 20% of the population. The report provides a mixed perspective. On the one hand, Kurds in the West can experience stigmatization if their identity is known. This can create a level of fear and uncertainty in Istanbul. They risk facing criminal charges as a result of their political views, even if they are not active in politics. On the other hand, the report states that Kurds do not face societal discrimination. They have access to government health and education service. They can usually obtain private and public sector employment, subject to some limitations with respect to senior levels of the public service. Millions of Kurds who are not politically active live normal lives without experiencing persecution in major cities, including Istanbul. Police generally provide effective protection to Kurds. [68] A 2018 Australian report indicates that Kurds face both official and societal discrimination, but this depends on geographical location and personal circumstances.21 It indicates that Alevis make up between 25 and 30% of the population. They face a low risk of official and societal discrimination, and are generally able to worship freely and participate in most areas of Turkish life, including politics. However, there are reports that some Alevis have been denied promotion in the public sector. [69] The Australian report states that the HDP participated in the June 2018 presidential and parliamentary election and won 67 seats. However, 11 HDP MPs had their seats revoked and 9 are in jail. There have been about 3,658 Criminal Code prosecutions for insulting the President of Turkey. The HDP presidential candidate was arrested and sentenced to 4 years and 8 months in jail. HDP offices were attacked during the election campaign. The Australian Department of Foreign Affairs and Trade states that: DFAT assesses that pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for both high-level politicians and low-level activists, and applies nationwide.22 [70] The Australian report outlines the number of databases maintained by the state. It is not a crime to seek asylum abroad, and failed asylum seekers face no significant stigmatization. However, they "would likely come to attention of the government if they have a criminal record or are a member of a group of particular interest." This includes Kurdish or opposition political activists.23 [71] A June 2016 RIR that precedes the failed coup provides background information about Kurdish political parties.24 A November 2018 RIR provides more recent information about treatment of the Alevis.25 Details about their faith can be found in a 2012 RIR.26 An overview of the current human rights situation in Turkey can be found in the 2018 Department of State report.27 This report indicates that the state of emergency was lifted on July 19, 2018. Notwithstanding this, some of its provisions were enacted through new laws and decrees that continue to place restrictions on fundamental freedoms, the independence of the judiciary and the rule of law. Since the coup attempt, 80,000 people have been arrested and 1,500 organizations have been closed on terrorism-related grounds. Arbitrary killing, suspicious deaths in custody, forced disappearances, and torture have been identified as being serious human rights issues. Tens of thousands of people have been subject to arbitrary arrest. Individuals who have criticized the government have been subject to criminal prosecution. The United Nations special rapporteur on torture expressed serious concerns about the increase in allegations of torture and other mistreatment against individuals in police custody. The executive branch of government exercises a strong influence over the judiciary. [72] The Appellant is an Alevi Kurd who supported Kurdish political parties, but with no significant level of political activities. He was concerned about social issues and protested against the construction of a shopping centre and for peace. His final encounter with Turkish authorities resulted in him being taken to a forest and his life being threatened. This likely took place because police had previously found signs in his car at a demonstration that were critical of the government. The documentary evidence confirms that the state has little tolerance for public displays of opposition. The Appellant's explanation that the death threat in the forest led him to conclude that he needed to leave the country is sufficient to conclude that his behaviour is not indicative of a lack of subjective fear. Given that the Appellant is likely now a person of interest to authorities, he would likely be subject to scrutiny upon return to Turkey. Although the Appellant does not have a history of active partisan political activities, he has participated in public protests against government policies and actions that he has the right to continue if he returns to Turkey. The fact that he is a Kurdish Alevi is an aggravating factor that would make him subject to a greater degree of interest. On these facts, it is likely that authorities would take an interest in his activities in Canada as part of an interrogation and investigation. According to the documentary evidence, he would likely come to the attention of authorities upon arrival in Turkey as a person who had previously been caught participating in a demonstration against the government. Even if his interrogation does not rise to the level of persecution, he would be unable to express political opinion as he has done in the past without risk or arrest and serious mistreatment. Given the severity of the treatment and the political reason for it, this would constitute persecution. State protection and internal flight are not viable alternatives because the State is the agent of persecution. The Appellant has a well-founded fear of persecution. CONCLUSION [73] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd October 30, 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Refugee Appeal Division Rules (SOR/2012-257). 3 Exhibit RPD-1, RPD Record, Exhibit 1, p. 76. 4 Ibid., Exhibit 5, pp. 180-202. 5 Ibid., Exhibit 6, p. 6, p. 208. 6 Ibid., Exhbit 7, pp. 215-227. 7 Bah v. Canada (Minister of Citizenship and Immigration), 2013 FC 1099. 8 Refugee Appeal Division Rules (SOR/2012-257). 9 Exhibit P-3, Rule 29, Additional Submissions for RAD Redetermination, 18 March 2019, p. 5-7. 10 Ibid., pp. 8-9. 11 Ibid., pp. 10-11. 12 Ibid., pp. 12-13. 13 Ibid. 14-16. 14 Ibod., pp. 17-18. 15 Ibid., p. 20. 16 Refugee Appeal Division Rules, SOR/2012-257, Rule 29, s. 4. 17 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP), for Turkey, (31 March 2017), Item 13.7, and 29 March 2019, Item 13.1. " The situation and treatment of Kurds and Alevis after the coup attempt in July 2016, including in the large cities (July 2016-January 2017)," RIR TUR105723.FE. 26 January 2017. 18 Exhibit P-3, Response to the De NOVO - Additional Submissions for RAD Redetermination, pp. 39-41. 19 NDP, Turkey, 29 March 2019, Item 1.6. "Country Policy and Information Note. Turkey: Kurdish political parties. Version 3.0." August 2018. 20 Ibid., item 1.11, "Country Policy and Information Note. Turkey: Kurds. Version 2.0.", September 2018. 21 Ibid., Item 1.17, "DFAT Country Information Report: Turkey.", 9 October 2018. 22 Ibid., para. 3.48. 23 Ibid., para. 5.28. 24 Ibid., Item 4.5. "Situation and treatment of members of Kurdish political parties that have succeeded the People's Democracy Party (Halkin Demokrasi Partisi, HADEP), including the Peace and Democracy Party (Baris ve Demokrasi Partisi, BDP), and the Peoples'...", RIR TUR105537.E, 14 June 2016. 25 Ibid., 12.2. "Situation of Alevis, including political and religious rights; treatment of Alevis by society and authorities; state protection (2015-November 2018)," RIR TUR106206.E, 30 November 2018. 26 Ibid., Item 12.3. "The Alevi faith, principles, beliefs, rituals and practices (1995 - 2005)." RIR TUR43515.E, 7 April 2005. 27 Ibid., Item 2.1. "Turkey. Country Reports on Human Rights Practices for 2018.", 13 March 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-20519 RAD.25.02 (April 04, 2019) Disponible en français 18 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 (April 04, 2019) Disponible en français