2024 RLLR 12
Citation: 2024 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: February 20, 2024
Panel: K. Blackwood
Counsel for the Claimant(s): Lior Eisenfeld
Country: Türkiye
RPD Number: TC2-25909
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
[1] XXXX XXXX is a citizen of Türkiye. He is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)[1].
ALLEGATIONS
[2] The claimant’s allegations are set out in his Basis of Claim form (BOC)[2]. In summary, he is making a claim on the basis of his political opinion, and his Kurdish ethnicity. He says he is a volunteer and supporter of the Halkların Demokratik Partisi (HDP) opposition party known as the People’s Democratic Party. He says he is seen by the authorities as a Kurdish political opponent. He fears arrest, detention, and harsh treatment by the authorities upon return.
DETERMINATION
[3] Having considered the totality of the evidence, the panel finds the claimant to be a Convention Refugee pursuant to section 96. He faces a serious possibility of persecution on a balance of probabilities on the basis of his political opinion, and his Kurdish ethnicity.
ANALYSIS
Identity
[4] The panel finds that the claimant’s identity as a Turkish national has been established on a balance of probabilities by his Republic of Turkey Passport biodata page[3] and his Turkish driver’s license.[4]
Nexus
[5] The panel finds there are several links between the claimant’s fear of return and the Convention grounds: political opinion and ethnicity. Therefore, the claims will be assessed pursuant to section 96 of the IRPA. The test under section 96 is whether there is a serious possibility of persecution should the claimant return to Türkiye. The panel finds that the claimant has met this test.
Credibility
[6] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[5]
[7] The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.[6] An important indicator of credibility is the consistency with which a witness tells his or her story, and the existence of inconsistencies can be a valid basis for finding a lack of credibility.
[8] The panel finds that the presumption of truth has not been rebutted. The claimant provided reasonably detailed, consistent, and spontaneous testimony, and was easily able to add elaborative details beyond the information provided in his BOC form and narrative, as well as with the personal supporting documentations.[7]
Documentary evidence of the claimant’s profile as a Kurd
[9] To support his allegations regarding his profile as Kurd, he provided a letter from the XXXX XXXX XXXX[8] dated XXXX XXXX, 2024, saying they agree that he is Kurdish as he alleges. The panel finds the letter is consistent with the objective evidence[9] in the NDP about the contents and process by which they are issued by this organization, including the steps taken to ascertain the ethnicity of a refugee claimant. The panel is therefore satisfied and has no doubts to its authenticity and gives it full weight in establishing the claimant as a Kurd.
[10] The panel therefore find that the claimant has established that he is Kurdish on a balance of probabilities.
Claimant’s profile as a HDP supporter and his treatment by the authorities and his neighbours.
[11] The claimant testified that while in Türkiye he was called a Kurd Terrorist by his Turkish neighbours and the authorities, because of his participation in HDP activities. He stated that his family specifically his father, had encountered issues in the past with the Turkish security forces because he is a Kurd and because of his influence in the community. His father was also detained and accused of hiding PKK fighters by the authorities.
[12] The claimant testified that in his view, HDP defends Kurdish rights, equality, and freedom and because of this he started supporting the organization beginning in 2003. He was able to speak in detail about participating in rallies, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX attend meetings and debates, and attending Newroz celebrations organized by HDP. Due to his participation in HDP activities, his home was raided, and he was detained and interrogated by the authorities on XXXX XXXX, 2014.
[13] He testified that over the years his support of HDP continued and as a result he faced discrimination from his Turkish neighbours who threatened to kill his animals in an effort to force him from the community. It is his testimony that in July 2020 after his neighbour killed his cattle, he reported the incident to the authorities but instead of investigating the complaint against his Turkish neighbour, it was ignored, and he was called an enemy of Türkiye.
[14] The claimant testifies that on XXXX XXXX, 2022, policemen along with individuals from his village came to his home and interrogated him about his participation in a HDP meeting where a photo of him was shared on social media. He was taken to the police station and detained and upon his released he discovered that his family dog went missing.
[15] To support his allegations regarding his profile as a Kurdish HDP supporter and his issues with the authorities and his Turkish neighbours, the claimant provided affidavits[10] from fellow villagers, who witnessed his detention and treatment from the authorities and other villagers because the claimant was a Kurd; a letter from the claimant’s wife corroborating the claimant’s testimony if being detained by the authorities and accused of being a terrorist after he participated in Newroz celebrations and other HDP activities.
[16] The panel accept that on a balance of probabilities that the writers of the letters knew of the arrests and discrimination the claimant endured and that they were eyewitnesses to these events. The panel therefore assign these letters full probative weight.
[17] The panel find on a balance of probabilities that the authorities arrested and accused the claimant on multiple occasions of being Kurd Terrorist because he is Kurdish and attended and participated in HDP protests and demonstrations starting in 2003; and that this discriminatory treatment escalated in 2022 where his cattle was killed by his neighbours and the authorities refused to address his complaint. The panel further finds that this have been established through his testimony and is consistent with his BOC narrative.
Subjective Fear
[18] The claimant established that he left Türkiye after being detained and accused of being a Kurd Terrorist on multiple occasions by the Turkish government. The panel finds that he has established that it was his arrests and mistreatments by the authorities and fellow villagers that caused them to flee the country because of his Kurdish profile, his political profile as a HDP supporters and his arrests and detentions by Turkish authorities due to his political activities. The panel further finds that the claimant has established his subjective fear.
Well-Founded Fear of Persecution
[19] The panel found the claimant’s fear of return because of his profile as a Kurdish political opponent and HDP supporter to be corroborated by the National Documentation Package for Türkiye.
[20] The US State Department reports[11] that in May 2016, the Turkish government declared it had stopped a coup attempt. It suspended rights and freedoms and began a fresh wave of political opponent arrests. Some of these people remain behind bars to this day. It designated followers of opposition movements as terrorists. In recent years, this has included the HDP in which the claimant supports.
[21] The same source[12] further states that authorities reportedly detain, arrest, and try individuals using questionable evidentiary standards and without full due process. There is arbitrary and indefinite detention, authorities have relaxed restrictions on the use of torture, and there is widespread impunity for officials who commit human rights abuses.
[22] Kurdish political opponents face particular risks.[13] The UK Home Office[14] reports that the central government perceives Kurdish people and HDP supporters to be supporters of the PKK, also known as the Kurdistan Workers Party. The PKK is a banned terrorist group[15], whereas the HDP is a pro-Kurdish[16] opposition political party which the panel finds has been continuously targeted by the regime.
[23] The UK Home Office[17] reports that people imputed by the authorities to be Kurdish HDP sympathizers have been accused of supporting terrorism. Being identified as a terrorist raises the risk of a lifetime of monitoring, arrests, detentions, interrogations and worse. This report states that Kurdish HDP supporters are routinely singled out for arbitrary arrest and violence, as the claimant has testified.
[24] The panel finds that the claimant’s subjective fear of persecution has an objective basis and is therefore well-founded.
State Protection
[25] Except in situations where the country is in a state of complete breakdown, states are presumed to be capable of protecting their citizens. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is, however, not required to risk their life seeking ineffective protection.[18]
[26] The claimant had approached the authorities on the past when his cattle were killed by his neighbours but instead of assisting with his complaint, it was ignored, and he was instead detained and accused of being a Kurdish Terrorist.
[27] The panel notes that one of the claimant’s agents of persecution in this case is the Turkish state, therefore, the panel find that it is objectively unreasonable for the claimant to seek out protection, and that state protection could not be seen as reasonably forthcoming. The panel finds the presumption of state protection is rebutted in this case with clear and convincing evidence. The panel therefore finds there is no adequate state protection for the claimant.
Internal Flight Alternative
[28] The test for an internal flight alternative (IFA) is two-fold, as set out by the Federal Court of Appeal in the case of Rasaratnam.[19] In assessing an IFA, the panel must apply a two-pronged test. The panel must be satisfied that there is no serious possibility of persecution or, on a balance of probabilities, that the claimant would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the identified IFA.
[29] The panel find that, on a balance of probabilities, the test for an IFA fails on the first prong in the present case.
[30] The panel considered whether there is an internal flight alternative for the claimant. Given that the state is the agent of persecution, and it exercises control over all of Türkiye, the panel finds the claimant would face a serious possibility of persecution throughout the country. Accordingly, there is no viable internal flight alternative for him.
[31] The panel finds that the claimant faces a serious possibility of persecution throughout Türkiye.
CONCLUSION
[32] Based on the evidence before the panel, the panel finds that the claimant on a balance of probabilities, have established that he faces a serious possibility of persecution in Türkiye because of his political opinion and ethnicity as a Kurd.
[33] The panel therefore find the claimant to be a Convention refugee pursuant to s.96 of the IRPA and accept his claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Exhibit 2 – Basis of Claim Form
[3] Exhibit 1 – Claim referral information from CBSA/IRCC
[4] Exhibit 6 – Disclosure personal-Counsel January 29, 2024
[5] Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 I’m. L.R. (2d) 220 (F.C.T.D.).
[6] Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.).
[7] Exhibit 6 – Disclosure personal-Counsel January 29, 2024
[8] Exhibit 8 – Post Hearing Submissions – Counsel February 19, 2024
[9] National Documentation Package, Türkiye, 31 July 2023, tab 13.9: Canada and Turkey: Toronto Kurdish Community and Information Centre (TKCC); methods used by the organization to verify an individual’s Kurdish ethnicity; method of issuing letters in support of an individual’s Kurdish ethnicity; content of … Immigration and Refugee Board of Canada. 3 April 2020. ZZZ200157.E.
[10] Exhibit 6 – Disclosure Personal-Counsel January 29, 2024
[11] National Documentation Package, Türkiye, 31 July 2023, tab 2.1: Turkey (Türkiye). Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[12] Ibid
[13] National Documentation Package, Türkiye, 31 July 2023, tab 13.1: Situation of Kurds, including in Istanbul, Ankara, and Izmir; situation of supporters or perceived supporters of the Peoples’ Democratic Party (Halkların Demokratik Partisi, HDP); situation of Alevi Kurds (July 2018-December 2019). Immigration and Refugee Board of Canada. 7 January 2020. TUR106385.E.
[14] National Documentation Package, Türkiye, 31 July 2023, tab 4.16: Country Policy and Information Note. Turkey: Peoples’ Democratic Party (HDP). Version 4.0. United Kingdom. Home Office. March 2020.
[15] National Documentation Package, Türkiye, 31 July 2023, tab 1.4: Turkey: Country Report – Version 3. Asylum Research Centre. 21 November 2017.
[16] National Documentation Package, Türkiye, 31 July 2023, tab 1.6: Turkey. BTI 2022 Country Report. Bertelsmann Stiftung. February 2022.
[17] National Documentation Package, Türkiye, 31 July 2023, tab 4.16: Country Policy and Information Note. Turkey: Peoples’ Democratic Party (HDP). Version 4.0. United Kingdom. Home Office. March 2020.
[18] Canada (Attorney General) v. Ward, [1993] 2 SCR 689.
[19] Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).