2023 RLLR 221
Citation: 2023 RLLR 221
Tribunal: Refugee Protection Division
Date of Decision: November 9, 2023
Panel: Alexandra Mann
Counsel for the Claimant(s): James Darrell Hayes
Country: Turkiye
RPD Number: VC3-06847
Associated RPD Number(s): VC3-06849, VC3-06850
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX XXXX (the “principal claimant”), his spouse, XXXX XXXX (the “associate claimant”), and their daughter, XXXX XXXX XXXX (the “minor claimant”), as citizens of Türkiye who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
[2] The principal claimant was appointed as the designated representative for the minor claimant.
[3] In assessing the claims of the associate claimant and minor claimant, I have considered and applied the Immigration and Refugee Board’s (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (“Gender Guideline”).[2]
ALLEGATIONS
[4] The principal claimant and associate claimant are Turkish nationals who were married in 2016. The principal claimant and associate claimant have one child together, a daughter, who was born in XXXX 2017 (the minor claimant).
[5] The principal claimant was born into a Muslim family. However, over time, the principal claimant started to question religion and now identifies as an atheist.
[6] The associate claimant was born into an Alevi family. The associate claimant identifies as culturally Alevi, but in terms of her religious views, the associate claimant identifies as an atheist.
[7] The principal claimant and associate claimant both oppose the current government of Türkiye. Specifically, the principal claimant and associate claimant oppose the Turkish government’s promotion of Islam within Turkish society. The principal claimant and associate claimant are also critical of the government for supressing freedom of thought and imprisoning people for expressing their beliefs.
[8] The associate claimant has not been vocal about her religious or political views out of fear of reprisal. The principal claimant, on the other hand, has been vocal. In approximately 2019, the principal claimant became active on social media posting videos and livestreams about his religious and political views on YouTube. The principal claimant earned a large online following and attracted the attention of the Turkish authorities.
[9] In XXXX 2022, the principal claimant was charged under Article 216(3) of the Penal Code of Türkiye, which states that a “person who publicly degrades the religious values of a section of the public shall be sentenced to a penalty of imprisonment for a term of six months to one year, where the act is capable of disturbing public peace.”[3]
[10] The principal claimant’s legal proceeding was reported in the Turkish media. The principal claimant also received numerous threatening messages online – including death threats – from individuals who disagree with his views.
[11] On XXXX XXXX, 2023, the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX found the principal claimant guilty of Article 216(3) and sentenced him to six months imprisonment. As the principal claimant had no prior criminal convictions, the court ordered that the verdict be deferred, and that the principal claimant be subjected to five years of probation. The order indicates that if the principal claimant reoffends during the probation period, the verdict will come into effect.[4]
[12] On XXXX XXXX, 2023, the claimants fled to Canada and initiated their claims for protection.
DETERMINATIONS
[13] I find that the principal claimant and associate claimant are Convention refugees pursuant to section 96 of the Act.
[14] I find that the minor claimant is neither a Convention refugee under section 96 of the Act, nor a person in need of protection under section 97(1) of the Act.
ANALYSIS
Identity
[15] The claimants’ personal identities and their identities as Turkish nationals have been established on a balance of probabilities by the testimony of the adult claimants and the copies of the claimants’ Turkish passports in evidence.[5]
Credibility
[16] In refugee claims, there is a presumption that sworn testimony is true unless there is sufficient reason to doubt its truthfulness. I find that the principal claimant and associate claimant testified in a genuine and straightforward manner. In particular, the principal claimant and associate claimant provided genuine testimony regarding their atheism, their opposition to the Turkish government’s efforts to impose Sunni Islam on the population, and their opposition to the Turkish government’s repression of free speech in the country. There were no material omissions or contradictions in the claimants’ testimony that causes me to doubt the principal claimant and associate claimant’s truthfulness or reliability, and I find that they are both genuine atheists who hold genuine anti-government opinions.
[17] The claimants also disclosed corroborative documentary evidence, including: print-outs documenting that the principal claimant has been active on social media and earned a large following; copies of court documents confirming that the principal claimant has been charged and convicted under Article 216(3) of the Penal Code of Türkiye for expressing his religious views online; copies of news articles confirming that the principal claimant’s legal proceeding was reported in the Turkish media; and copies of threatening messages sent to the principal claimant online. There is nothing on the face of these documents that causes me to doubt their genuineness or credibility.
[18] The allegation that the principal claimant has been criminally convicted for expressing his religious views online is also credible in light of the country condition documents regarding Türkiye. According to sources in the National Documentation Package (NDP) for Türkiye, President Recep Tayyip Erdogan has been in office since 2002. After initially passing some liberalizing reforms, the Erdogan government has showed growing contempt for political rights and civil liberties and has pursued a wide-ranging crackdown on critics and opponents since 2016. Constitutional changes in 2017 concentrated power in the hands of the president, removing key checks and balances. While Erdogan continues to dominate Turkish politics, a deepening economic crisis and opportunities to further consolidate political power have given the government new incentives to suppress dissent and limit public discourse.[6]
[19] While Türkiye’s constitution guarantees freedom of religion, under Erdogan’s rule, Türkiye’s public sphere has become increasingly dominated by Sunni Islam. Religious schools that promote Sunni Islamic education have proliferated under the current government, and the public curriculum mandates compulsory religious education.[7]
[20] Prosecutions and detentions of Turkish citizens for their online activities have become increasingly common. Many journalists, activists, and ordinary citizens face arrest for voicing opinions deemed undesirable by the government. Websites can be blocked for “obscenity” if they are deemed defamatory to Islam, which includes content that promotes atheism. Online speech on topics such as Islam or even mild criticism of the government can result in death threats and legal battles. Defaming a public official carries a minimum sentence of one year in prison, while insulting the president is punishable by between one and four years in prison, according to Article 299 of the Penal Code of Türkiye.[8] Under Article 216(3) of the Penal Code, publicly degrading religion carries a penalty of six months to one year imprisonment. [9]
[21] This country condition evidence establishes that the current Turkish government uses the criminal law to limit free expression, for example by penalizing citizens who express opinions on social media that are perceived by the government as insulting to Islam or insulting to the government and/or president.
[22] I note that the claimants departed Türkiye after the principal claimant was convicted and sentenced to five years of probation. The principal claimant testified that he was worried that the Turkish authorities would stop him at the airport and prevent him from leaving the country, but that he was able to board his flight without issue. Based on this evidence, it appears that the Turkish authorities did not place the principal claimant’s name on a “no fly” list. I find that the principal claimant’s non-inclusion on such a list is an insufficient basis for me to conclude that the principal claimant has not been convicted in Türkiye, which is clearly established by the other evidence before me including the Turkish court documents. I therefore do not draw a negative inference from the claimants’ ability to leave Türkiye without issue.
[23] In view of the principal claimant and associate claimant’s credible testimony, the corroborative documentary evidence, and the country condition evidence, I find on a balance of probabilities that the claimants are credible and I accept the facts as alleged.
Well-Founded Fear of Persecution and Risk of Harm
[24] To qualify for protection in Canada under section 96 of the Act, the claimants must establish that they have a genuine subjective fear of persecution and that this fear is objectively well-founded.
Subjective Fear
[25] With respect to the claimants’ subjective fear, I note that the claimants travelled to Canada shortly after the final judgement against the principal claimant was issued. The claimants also initiated their claims for protection shortly after their arrival in Canada. I find that these actions are consistent with a genuine subjective fear of persecution. While I note that the claimants may have been able to flee Türkiye at an earlier date, I find that their failure to do so is an insufficient basis to conclude that the claimants lack subjective fear.
[26] Considering the evidence as a whole, including the claimants’ credible evidence and their action in coming to Canada to seek refugee protection, I find that the claimants have established a genuine subjective fear of persecution.
Objective Basis
[27] I will now assess whether the claimants’ fears are objectively well-founded. I will assess each claimant in turn.
Objective Basis of Principal Claimant’s Fear of Persecution
[28] As stated above, the principal claimant has been convicted of publicly degrading the “religious values of a section of the public” for his action in expressing his religious views on social media. According to the court documents in disclosure, the principal claimant was convicted for making statements such as “XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX … XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX … XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.”[10]
[29] It is worth noting that making such statements would not be considered an offence in Canada. Rather, such statements would be considered an expression of the principal claimant’s personal beliefs and would be protected under the principal claimant’s constitutional right to freedom of expression. Consequently, Article 1F(b) of the Refugee Convention is not triggered in this case.
[30] As stated above, the principal claimant was given a suspended sentence of six months imprisonment with five years of probation. If the principal claimant were to “reoffend” within the probation period, I find on a balance of probabilities that he would be required to serve the six-month term of imprisonment. The principal claimant testified that since the judgement, he has continued to post his religious and political views on social media. Consequently, the chances of the principal claimant being required to serve his term of imprisonment are high.
[31] I find that to be imprisoned for expressing one’s religious or political views is in itself persecutory. Moreover, the conditions that the principal claimant would face in detention in Türkiye would be harsh and life threatening. Sources report that “(d)ismal conditions of detention have been the norm in Turkey for many years. With imprisonment rates skyrocketing over the past decade, torture, ill-treatment, and medical neglect are reaching crisis levels.”[11] For these reasons, I find that the principal claimant faces a serious possibility of persecution in Türkiye.
Objective Basis of the Associate Claimant’s Fear of Persecution
[32] As stated above, I find that the associate claimant provided genuine testimony regarding her atheism and her opposition to the current Turkish government. The associate claimant testified that she has not expressed her religious or political opinions online out of fear. Considering the country condition evidence, this fear is well-founded. According to the sources cited above, ordinary citizens can face arrest and imprisonment for voicing opinions deemed defamatory to Islam, including content that promotes atheism, and for criticizing the current government or president.[12] Those who are detained for expressing such views face harsh prison conditions including ill-treatment, medical neglect and even torture.[13] Given the associate claimant’s genuine atheism and genuine anti-government views, and the harsh penalties for publicly voicing these opinions, I find that the associate claimant faces a serious possibility of persecution in Türkiye.
Objective Basis of Minor Claimant’s Fear
[33] With respect to the minor claimant, the principal claimant testified that he fears that the minor claimant will be harmed by the individuals who have issued threats against the principal claimant online. At the hearing, I asked the principal claimant whether any of the threats he received were directed at the associate claimant or the minor claimant. The principal claimant responded that they were not. Given that no threats were directed against the minor claimant, I find that there is insufficient evidence that any of the individuals who threatened the principal claimant would harm the minor claimant. I therefore find that the minor claimant would not face a serious possibility of persecution from those who have threatened the principal claimant.
[34] The principal claimant also testified that as the associate claimant comes from an Alevi family, the minor claimant would be considered an Alevi within Turkish society and would face persecution as a result. According to item 12.3 of the NDP, the term Alevi refers to a branch of Islam that represents the largest religious minority in Türkiye. Various sources report that “most” Alevis view their beliefs as a distinct religion, but “some” identify as Shia or Sunni or view being Alevi as “predominantly … cultural rather than religious”. Sources further indicate that “some Alevis self-identify as part of a unique non-Muslim culture”, while “[f]or some members, Alevism is simply a cultural identity, rather than a form of worship”.[14]
[35] With respect to the conditions for Alevis in Türkiye, Australia’s Department of Foreign Affairs and Trade (DFAT) reports that Alevis are “generally able to worship freely and participate in most areas of Turkish life”. Other sources, however, indicate that Alevis face varying levels of mistreatment. One academic cited in item 12.2 states that individuals who are open about being Alevi “might” be “socially discriminated against”. Freedom House reports that Alevis face “discrimination in schools and in employment, particularly when seeking senior public-sector positions”. Other sources state that Alevis face “hate speech ” as well as “discrimination and violence in almost every aspect of life”.[15] Based on this country condition evidence, I find that Alevis in Türkiye may face discrimination and even violence.
[36] The principal claimant and associate claimant stated in their narrative that “(a)s parents, we have chosen to raise our daughter to be inquisitive, rather than religious or Atheist. Our hope is that she questions the things she is told, and that she follows science, logic, and the values of tolerance and kindness”.[16] The narrative also states that the associate claimant “no longer follows or practices Alevism, nor does she think about or care for religion”.[17] Given that the associate claimant no longer follows Alevism and that the principal claimant and associate claimant are raising the minor claimant to be openminded, rather than raising her within a certain religion or belief system, I find that there is insufficient evidence that the minor claimant would self-identify or be perceived as Alevi in Türkiye. I therefore find that the minor claimant would not face a serious possibility of persecution on the basis of her Alevi ancestry.
[37] I have also considered whether the minor claimant would face persecution or a risk of harm on account of her gender. The country condition documents indicate that women do not have equal rights to men in Türkiye. Sources report that Turkish women are underrepresented in politics and face gender discrimination in the labour market. Freedom House reports that although gender inequality in the workplace remains a pressing issue in Türkiye, women make up a growing part of the country’s workforce.[18] Various sources indicate that domestic violence is a serious problem in Türkiye. In the past, the Turkish authorities have made efforts to address this issue. However, there have been significant setbacks. For example, in 2021, the government withdrew Türkiye from the Istanbul Convention, the most important international treaty regarding gender-based violence, which resulted in the removal of legal protections for women from assault and harassment.[19]
[38] This evidence establishes that women in Türkiye continue to face gender-based discrimination and violence, and that state protection for women is lacking. However, I find that there is insufficient evidence that gender-based discrimination and violence is so pervasive and widespread in Türkiye that the minor claimant would face a serious possibility of persecution on account of her gender.
[39] For these reasons, I find that the minor claimant would not face a serious possibility of persecution in Türkiye and therefore does not meet the requirements for protection under section 96 of the Act.
[40] Similarly, I find that there is insufficient evidence to support a finding that the minor claimant qualifies for protection under section 97. The Federal Court has held that the range of harms which may constitute persecution is wider, or of similar scope, than the range of harms that may constitute a section 97 risk. In addition, the legal test for section 96 – serious possibility – is lower than the legal test for section 97 – balance of probabilities.[20] As the evidence is insufficient to support a finding that the minor claimant faces a serious possibility of persecution, I also find that it has not been established – on the higher threshold of a balance of probabilities – that the minor claimant would be subjected personally to a risk of harm contemplated by section 97, which is narrower than the scope of persecution.
[41] The minor claimant’s claim for protection therefore cannot succeed. It is worth noting, however, that the minor claimant may be included in her parents’ application for permanent resident status in Canada.
[42] I will now assess the remaining elements of the principal claimant and associate claimant’s claims for protection, namely whether they would have adequate state protection or an internal flight alternative in Türkiye.
State Protection
[43] As a starting point, there is a presumption of state protection unless there is clear and convincing evidence that state protection is inadequate or non-existent.[21] In the present case, the principal claimant and associate claimant cannot seek state protection in Türkiye as the Turkish government is the agent of persecution. I therefore find that the presumption of state protection has been rebutted in this case.
Internal Flight Alternative
[44] The final issue for me to consider is whether the principal claimant and associate claimant have a viable internal flight alternative (IFA) in Türkiye. As stated above, the Turkish government is the agent of persecution. As the Turkish government has control over its entire territory, I find that there is no location within Türkiye in which the principal claimant and associate claimant would not face a serious possibility of persecution. Consequently, I find that the principal claimant and associate claimant do not have an IFA.
CONCLUSION
[45] For the foregoing reasons, I find that the principal claimant and associate claimant are Convention refugees pursuant to section 96 of the Act and I accept their claims.
[46] I find that the minor claimant is neither a Convention refugee under section 96 of the Act, nor a person in need of protection under section 97 of the Act. The claim of the minor claimant is therefore denied.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, Ottawa, Canada, July 2022.
[3] Penal Code of Türkiye, Article 216(3).
[4] Exhibit 4, page 24 to 26.
[5] Exhibit 1.
[6] Exhibit 3, National Documentation Package (NDP) for Türkiye, July 31 2023 Version, Item 2.3.
[7] Exhibit 3, NDP for Türkiye, Item 2.3.
[8] Exhibit 3, NDP for Türkiye, Item 11.3.
[9] Penal Code of Türkiye, Article 216(3).
[10] Exhibit 4, page 24.
[11] Exhibit 3, NDP for Türkiye, Item 2.1.
[12] Exhibit 3, NDP for Türkiye, Item 11.3.
[13] Exhibit 3, NDP for Türkiye, Item 2.1.
[14] Exhibit 3, NDP for Türkiye, Item 12.3.
[15] Exhibit 3, NDP for Türkiye, Item 12.2.
[16] Exhibit 2.1, claimants’ Basis of Claim narrative, paragraph 16.
[17] Exhibit 2.1, claimants’ Basis of Claim narrative, paragraph 15.
[18] Exhibit 3, NDP for Türkiye, Item 2.3.
[19] Exhibit 3, NDP for Türkiye, Items 2.1 and 2.3.
[20] Mudrak v. MCI, 2015 FC 188 at para. 43, affirmed 2016 FCA 178 (without answering certified questions).
[21] Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94.