TB8-18458

RAD File / Dossier de la SAR : TB8-18458 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 March 10, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal D. Clifford Luyt 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] Mr. XXXX XXXX, a Turkish national, claims refugee protection based on religious persecution as an Alevi and based on his political opinion as a leftist. He claims that, in school, he was mistreated by his teachers and other children because of his Alevi faith. He claims further that, when he worked XXXX XXXX XXXX XXXX from 2008 to XXXX 2016, his fellow workers bullied him because of his religion and his leftist political views. [2] In addition, he claims he was detained and beaten by the Turkish authorities twice. First, in XXXX 2016, after he left his job at the XXXX XXXX, he claims he was detained and beaten based on an accusation that he was a supporter of the Gülen movement. In addition, he claims he was arrested in XXXX 2017 and accused of being against President Erdogan and his Justice and Development Party (AKP). As part of the second detention, he was held for four days, during which time he was questioned, tortured, deprived of basic needs, and given little food. His XXXX XXXX was damaged due to a beating he received. The Appellant flew to Canada, arriving on XXXX XXXX, 2017. He claims that the police continue to pursue him: they made inquiries about him at his parents' home on XXXX 10, 2018. [3] His claim was denied by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (Board) by an oral Decision of February 8, 2018 because he was found not to be credible. I grant this appeal for the reasons set out below. DETERMINATIVE ISSUE [4] The determinative issue in this case is credibility. STANDARD OF REVIEW [5] In my review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.2 ANALYSIS [6] First, the RPD held that the Appellant's testimony was not, at times, credible or trustworthy, that parts of it lacked the "ring of truth," and that parts were vague and nonsensical. It found that his claim to have been persecuted based on his political opinion was not supported by the objective documentation. Finally, it found that the Appellant had not faced discrimination amounting to persecution based on his Alevi faith-and that he would not face a serious possibility of persecution upon return. [7] The Appellant challenged the RPD's credibility findings. In addition, he argues that the Decision lacked clarity: the RPD did not make an overall credibility finding with the result that it is not possible to see what parts of his evidence the RPD rejected and what parts it accepted. Finally, he argues that its analysis of discrimination against members of the Alevi faith in Turkey was in error as it did not consider his own experiences. 1. Credibility [8] The RPD made the following credibility findings:3 a. it was not plausible that the Appellant would not have sought medical assistance after the second detention and the RPD did not accept his explanation as to why he did not do so-i.e. if he had, he would have had to tell the doctor and that would have led to more trouble;4 b. he omitted his work for the People's Democratic Party (HDP) from his Basis of Claim (BOC) narrative; c. it was clear from a supporting letter from the XXXX XXXX XXXX XXXX XXXX (XXXX), which was brief and uninformative, that he did not have a leadership role in the XXXX; d. his claim that his mother did not want to know why the police sought him in XXXX 2018 was implausible; e. it was implausible that the police would have sought the Appellant in XXXX 2018, given his relatively obscure political profile; f. he failed to make an asylum claim earlier, despite having had many opportunities to do so while he worked XXXX XXXX XXXX XXXX. [9] The Appellant argues that the RPD erred overall in its credibility findings. It primarily argues that the RPD misapplied the test for implausibility. [10] I agree. The Federal Court, in the Valtchev case,5 held that an adverse credibility finding based on implausibility "should be made only in the clearest of cases, i.e. if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant".6 The findings labelled a), d) and e) above do not meet the test. [11] As regards finding b) above, I find that the omission of the HDP is not something that warrants a negative credibility inference. While not mentioning his work for the HDP, the Appellant did, as the RPD itself noted, elaborate other political events in which he participated. [12] The RPD's treatment of the letter from the XXXX (item c) above) was somewhat unclear. If its point was that the letter, given its lack of specificity and relatively generic nature warranted less weight, I agree. However, if the fact that he did not hold a leadership role with the XXXX was considered to undermine his credibility, I disagree with the RPD. [13] Finally, the Appellant argues that the RPD erred in its finding that his credibility and/or claim of subjective fear was undermined because of his failure to seek refuge at XXXX XXXX XXXX XXXX that he visited while working for XXXX XXXX XXXX (item f) above). He argues that it is clear from the facts that he was targeted by the Turkish authorities after he stopped working at XXXX XXXX XXXX, in XXXX 2016. [14] I note that not all of the Appellant's claims of persecution arose after XXXX 2016-he also claims that he was mistreated in school based on his Alevi faith and on the ship based on his being an Alevi and his political opinions. However, the fact the Appellant would put up with the type of treatment he claims occurred before XXXX 2016, but flee from the type of treatment he claims occurred after that date (i.e. assault and torture) does not, to my mind, undermine his credibility or subjective fear. After all, the assaults and torture were of a different order and would, to my mind, amount to culminating events.7 [15] In sum, I do not accept the RPD's credibility findings. In view of this, and in view of the Maldonado presumption that sworn evidence from a refugee claimant must be taken as being the truth absent reasons to doubt it, I must accept the Appellant's evidence as true. Consequently, I must find that he was beaten by the Turkish authorities for being a suspected Gülen Movement supporter in XXXX 2016 and tortured for his perceived political views in XXXX 2017. I must also accept his claim that the Turkish police continue to pursue him, as evidenced by his claim that they sought him in XXXX 2018 at his parents' home. [16] Based on his past persecution and the fact that the Turkish authorities continue to seek him, I find that there is a serious possibility that he will be persecuted if he returns to Turkey. I note that, because his potential persecutor is the government of Turkey itself, this is not a case where an internal flight alternative needs to be considered. [17] Because of my finding in relation to his abuse and torture at the hands of the Turkish authorities, I need not consider his claim to have been persecuted due to his status as an Alevi or due to his political opinions before XXXX 2016. CONCLUSION [18] I set aside the decision of the RPD and find the Appellant to be a Convention refugee. The appeal is allowed. (signed) "James Sloan" James Sloan March 10, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See also Rosas 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. 3 I note that it is not entirely clear that the findings I have marked b) and c) were credibility findings, per se. They are more in the nature of implied credibility findings. 4 The Appellant is correct in his observation that the RPD, while referring to the Appellant's failure to seek medical attention after the XXXX 2016 attack (and noting that he gave the same reason for not doing so), it did not make clear if it was making a finding that this, too, was implausible and showed a lack of credibility. To the extent that that was the RPD's intention, my reasoning in relation to item a) applies. 5 Valtchev v Canada (Citizenship and Immigration), 2001 FCT 776. 6 Ibid., at para 7. 7 As the Federal Court held in Ibrahimov v. Canada (Minister of Citizenship and Immigration), 2003 FC 1185 (CanLII), at para 19: "...when a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, then the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-18458 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