Sicak v. Canada (Minister of Citizenship and Immigration)

Between
Bucak Sicak and Neslihan Ercan, applicants, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 1862
2003 FC 1457
Docket IMM-4699-02

Federal Court
Toronto, Ontario
Gauthier J.

Heard: December 2, 2003.
Judgment: December 11, 2003.
(29 paras.)

Counsel:

Clifford Luyt, for the applicants.
Robert Bafaro, for the respondent.

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REASONS FOR ORDER AND ORDER
1 GAUTHIER J.:— Bucak Sicak and his wife Neslihan Ercan are Turkish citizens and Sunni Muslims.

2 They both allege a well-founded fear of persecution in Turkey on the basis of religion and membership in a particular social group namely, women wearing the headscarf in Turkey (Mrs. Ercan) and family members of such persons (Mr. Sicak).

3 The applicants seek judicial review of the decision rejecting their claim for Convention refugee status (Section 96 of the Immigration and Refugee Protection Act, 2001 c. 27) ("IRPA").

Facts

4 Mrs. Ercan wears the headscarf and claims that it is because she is wearing this religious symbol that she was prevented from attending the exams at Yesilkoty Ilkogrepim School in March 1998. She also says that she and her husband took part in several protest against the Turkish law banning headscarves between March 1998 and January 2000. As a result, she was arrested, beaten and humiliated (a police woman spit in her face).

5 Mr. Sicak claims that on January 21st, 2001, the police raided the private language school he was managing because he had permitted students wearing headscarves to attend and that they arrested him at his home that night, beat him and left him alone on a remote road in the country.

6 Both spouses claim to have been harassed by telephone.

7 In March 2000, they visited the United States where they spent about six days but they returned to Turkey and remained there until April 2001. On April 24th, 2001, they flew again to the United States and lived there until September 3rd, 2001. They did not claim Convention refugee status in the United States but met with lawyers and determined that their chances of obtaining a work permit or a visa were slim. During that period, Mr. Sicak also looked for and found work in Canada as an engineer. He was due to start the first week of September.

8 The Refugee Protection Division (the "Board") rejected both applicants' claim because among other things, they did not believe that the claimants were involved in any protest nor that they were arrested or mistreated by the police.

9 The Board came to that conclusion after noting substantial inconsistencies between the story they both told at the port of entry ("POE") and their PIF. For example, at the POE, Mrs. Ercan mentioned that "she could not join in any meeting for headscarf because she was afraid." She never mentioned the arrest of her husband in January 2001. Similarly, Mr. Sicak only said at the POE that "some friends joined in the headscarf protest, but I did not join in because of the police." He made no reference to his wife having ever participated in such protest or to having been arrested.

10 The Board states that "very little of the testimony or evidence produced subsequent to the POE notes has been consistent, trustworthy, or credible." The only fact the Board accepted as established is that Mrs. Ercan was prevented from writing her exams at her school because she was wearing her headscarf.

11 With respect to Mr. Sicak's claim, the Board also found it implausible that he would be arrested and beaten in January 2001 when the documentary evidence indicated that the ban was extended to private after school course centres and work training centres only in September 2001.

12 The Board held that the applicants had not established a subjective fear of persecution given that they appeared to have no problem with returning to Turkey after visiting the United States in 2000. They remained there without problem from March 2000 to January 2001 and still did not leave for more than 90 days after the alleged beating of Mr. Sicak. These delays were found to be inconsistent with such fear.

13 Finally, the Board having noted that:

- 98% of the Turkish population is Muslim;

- the principle of secularism as it is applied in Turkey, was established 60 years ago;

- the law banning headscarves in public places was upheld by the Turkish Constitutional Court and the European Human Rights Commission upheld this ruling;

- Turkey is a democracy with free election.

concluded that the claimants did not face persecution but prosecution for a violation of a law of general application.

Issues

14 The applicants argue that the Board I) erred in making its credibility findings and ii) failed to properly assessed whether the application of the statute banning headscarves constitutes persecution within the meaning of s. 96 of IRPA.

15 With respect to their second argument, the applicants had produced evidence establishing that for example, many women wearing headscarves were sometime refused treatment in hospitals, had difficulties finding jobs, could not attend universities or driving schools. None of this evidence is reviewed in the decision.

16 However at the hearing, the applicants agreed that unless the Court confirms that the Board made a reviewable error in reaching its conclusion that the applicants failed to establish a subjective fear, an error in their analysis of the objective component of their claims would not be sufficient to vitiate this decision, for it would not be determinative.

17 As explained below, I find that the Board's overall conclusion with respect to the lack of subjective fear is not unreasonable. Thus, with respect to the second argument, I shall simply say that I agree with the applicants that had it been necessary to assess the objective basis of their claims, the Board would have had to analyse the effect of the Turkish's statute, that is how it has been applied, to determine if it constituted persecution. In doing so, it would also have had to review the evidence submitted in that respect.

18 Turning now to the Board's findings with respect to the lack of credibility of the applicants and their failure to establish the subjective component of their claims, I note that the standard of review applicable to such questions is whether the decision was patently unreasonable. (Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.A. 39, [2003] F.C.J. No. 108 (Q.L.) at paragraph 14; R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 at paragraphs 8-11).

19 Even though, they attack the Board's overall conclusion, the main thrust of the applicants' case is that the Board made two fatal errors in its evaluation of their credibility, viz.:

a) it made an arbitrary inference that Mr. Sicak's school was an after school course centre or a training centre.

b) it failed to consider an undated letter sent by fax to Mr. Sicak in March 2002 by a former colleague at his language school confirming that Mr. Sicak had been taken to the police station in January 2001 because he had accepted students with headscarves.

a) Arbitrary inference

20 There was little information before the Board with respect to Mr. Sicak's language school. It appears that it was opened at night given that in the PIF, it is said that the police carried out its inspection at 8:00 p.m. to verify if there were students with headscarves. It was clearly a private school. Is this evidence sufficient to conclude that it was an "after school course centre or work training centre" to which the ban applied only as of September 2001? Was this sufficient to put aside Mr. Sicak's testimony that the ban applied to his school since 1999? Had it been the only reason given by the Board to conclude that Mr. Sicak was not arrested on January 21st, 2001, I would find that conclusion patently unreasonable. But I do not agree with the applicants that this is so. Even before discussing the date of the ban, the Board had clearly indicated that it did not believe that either applicants had been arrested or beaten by the police because of substantial discrepancies between their respective POE notes and their PIF.

21 Each applicant personally wrote detailed notes at the POE. Neither mentioned the arrest of January 21st, 2001 or the beating of Mr. Sicak. Mr. Sicak in fact says that he could not be happy in Turkey because his wife was not happy. He never mentioned any incident involving him personally. The only reference to the language school is found in Mrs. Ercan's POE notes where she says that her husband had a "very good job".

22 These omissions relate to an event at the core of Mr. Sicak's claim and the Court can only agree with the respondent that in the context of such substantial inconsistencies, the Board's conclusion that it did not believe that Mr. Sicak was ever arrested or beaten was open to them and was not unreasonable.

b) Letter from Mr. Sicak's colleague

23 It is well settled that the Board need not comment on each and every document produced in support of a claim.

24 "However, the more important the evidence that is not mentioned specifically..., the more willing a Court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence". (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 paragraph 17).

25 As mentioned, this letter was not written at the time of the arrest or shortly thereafter. It appears to have been sent by fax several months after Mr. Sicak arrived in Canada. The letter was specifically discussed during the hearing when counsel unsuccessfully attempted to clarify how the writer of the letter came to know of the arrest. So the Board was clearly aware of it.

26 The applicants state in their PIF that Mr. Sicak was arrested at 9:00 p.m. at his home, thus his colleague is unlikely to have witnessed it. The weight of this evidence depended greatly on the credibility of the applicants themselves.

27 In this context, the Court is not willing to infer any error on the basis that the Board does not refer to it specifically in its reasons.

28 Having carefully reviewed the POE notes, the PIF and the transcripts, I find that all of the other Board's findings with respect to credibility were open to it and were not unreasonable. The overall conclusion with respect to the lack of subjective fear of the applicants contains no reviewable error.

29 Neither party raised any question for certification and the Court finds that this case raises no question of general importance.

ORDER
THIS COURT ORDERS that:

The application for judicial review is dismissed.

GAUTHIER J.