Ottawa, Ontario, April 13, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
HATICE SUNNA
MESUT SUNNA
MAZLUM SUNNA
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This judicial review application is a challenge by Ahmet Sunna (the Principal Applicant), his wife and two minor children, citizens of Turkey, Alevi Kurds residing in Germany, to the October 26, 2004 decision of the First Secretary at the Canadian Embassy in Berlin (the Tribunal) who denied their application for permanent residence in Canada on the grounds Mr. Sunna was inadmissible for permanent residence under section 34 of the Immigration and Refugee Protection Act (the Act), namely, for engaging in terrorism or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism.
[2] The organization which the Tribunal found him to be a member of is the Kurdistan Workers Party known as the PKK whose activities, the Tribunal said included the killing of numerous civilians, a conclusion not challenged by the Applicants.
[3] Mr. and Mrs. Sunna met in Germany. Mr. Sunna made a refugee claim in Germany in 1990 or 1991 but it appears that this proceeding was abandoned and its reopening refused by the German Federal Office for the Acceptance of Foreign Refugees in November of 1994. Mrs. Sunna also made a refugee claim in 1994 and she was refused.
[4] The Applicants were interviewed by the First Secretary on May 8, 2003.
[5] The Tribunal reached its conclusions taking into account the following documents:
1. A written statement dated May 7, 2002 made by Mr. and Mrs. Sunna to the Canadian Immigration authorities in Berlin in connection with his application for permanent residence in which he wrote "I have been active in the Kurdish liberation fight as far as I could. I have backed up persons concerned with the guerrilla. I have provided logistic support." ... "I was told to refrain from the Kurdish fight. Not to support the Kurdish fight is a betrayal for me as a Kurd." ... "This is why for us it was the only way to support the guerrilla fight."
2. A written statement made by Mr. Sunna on January 11, 2002, once again to the Canadian authorities in Berlin in connection with his application for permanent residence in which he wrote ... "I have helped as much as possible in this national struggle. Mostly I tried to support the guerrilla fighters, providing logistical support. As a result, I became a target for the Turkish authorities. I was arrested a couple of times and tortured (I was beaten, insulted and spied upon). ... They made me stop supporting the Kurdish struggle, yet as a Kurd, it is treachery not to support the Kurdish struggle. ... We knew we were obligated to support the guerrilla struggle. My nephews were also involved in the struggle. We suffered casualties. Our blood was shed in this fight. Objecting and abstaining was no longer an option."
3. An extract from the Reasons for Judgment of the German Federal Office for the Acceptance of Foreign Refugees dated November 30, 1994 on Mr. Sunna's application for the reopening of his abandoned refugee claim. The complete extract is as follows:
To give reasons for his renewed application of asylum, the Applicant stated at the office for foreigners he got to know this by his common law spouse entered into Germany in August 1989 that he was still sought after in Turkey due to his former political activities for the P.K.K. His girlfriend had constantly been asked by the military for his abode. His family was constantly abused by the military because of him. He had also been acting for the P.K.K. during his stay in Germany. He had distributed leaflets and magazines, as well as taken part in seminars and events. The Turkish Secret Service (MIT) had informed the Turkish Government of his activities. As evidences for his activities, the Applicant has submitted to add to his file in copy numerous receipts of paid monthly contributions to the E.R.N.K. (the National Liberation Front of Kurdistan). (Certified Tribunal Record, page 25.)
4. A transcript extract (at Certified Tribunal Record page 125) from preliminary proceedings before the Federal Office for the Acceptance of Foreign Refugees in connection with Mrs. Sunna's application for refugee status in Germany. The following extract of Mrs. Sunna's testimony was quoted:
One day the PKK came to our house and asked for support. I do not know when exactly this was, as there are gaps in my memory and in the meantime, I have lost my sense of time. This is a result of torture which I had to suffer.
When the PKK were at our house, we gave them food. They tried to convince me with the aims and purposes of their organization. Because they are Kurds like me, they were successful and I promised to help them. In particular, I spread verbal propaganda and information leaflets.
Finally, it became known to others that I was working for the PKK. A special unit of the Turkish army came one day and arrested me and took me to the police station. There I was beaten, and they laid me bare - foot on a table and hit the soles of my feet with truncheons. They threatened me and said that they would have their revenge if I carried on working for the PKK who they said was an enemy of Turkey.
I left the hospital and returned home. The army continued to visit however. They kept on coming back, threatening us with the gravest of consequences if we continued to support the PKK. ...
I am working for the PKK here in Germany too.
[6] In his decision letter dated October 26, 2004, after setting out the extracts quoted above from the four documents he relied on, the Tribunal drew the following conclusion:
Both you and your spouse have indicated on several occasions to have voluntarily assisted the PKK in its activities both in Turkey and in Germany. Although you have not suggested that you were full members of the PKK, the information which you provided conclusively indicates that at the very least you provided varied material assistance to this terrorist organization, contributing to their ability to engage in terrorist activities. It is therefore my conclusion that there are reasonable grounds to believe that you were a member, de facto if not de jure, of the PKK. The activities of the PKK, including the killing of numerous civilians is a matter of public record.
[7] At their May 8, 2003 interview with the First Secretary, Mr. and Mrs. Sunna changed their story. They said what they had told the German and Canadian immigration authorities was not true. They were never part of the PKK and never supported them. They were not persecuted in Turkeyon political grounds but rather because of their religion they being Alevi Kurds.
[8] In his interview notes to file, the First Secretary wrote:
Neither applicant has any credibility. They have demonstrated that they willingly and knowingly altered their stories/refugee claims as circumstances warrant. I have no reason to doubt their claims to have assisted the PKK in their activities in Turkey. The PKK terrorist activities are part of the public record.
In a signed statement both applicants confirm that they have been active for the PKK. Both confirm that this statement was not true.
[9] In his October 26, 2004 letter, referring to the Applicants' recantation, the First Officer wrote:
During your interview on May 8, 2003 when I raised the issue of your activities with the PKK, you and your spouse suggested that you had wholly misrepresented your activities in Turkey to the German Refugee Tribunal, various courts, as well as to this Embassy on at least two occasions. There is no evidence to suggest that this is indeed the case.
[10] The First Secretary wrote the Principal Applicant on May 20, 2003. The letter the First Secretary sent to Mr. Sunna contained exactly the same words as his subsequent October 26, 2004 refusal letter except the last paragraph was different. In the May 20, 2003 letter the last paragraph read:
Before I finalise this application, I am providing you with an opportunity to respond to these concerns. Should you not reply within 3 months of the date of this letter, I shall conclude that you have nothing further to submit and I will refuse your application.
[11] The last paragraph of the First Secretary's October 26, 2004 letter reads:
I had advised you of my concerns by letter dated May 20, 2003. To date, we have not received any further information seeking to address these concerns. Accordingly, I can only conclude that my concerns are well founded and that your inadmissibility under section 34 has been established. Accordingly, I am refusing your application for permanent residence in Canada.
[12] The certified Tribunal Record reveals that contact was made on June 30, 2003 by the Canadian solicitors to the Applicants with the Embassy in Berlin. Canadian counsel wanted a copy of the transcripts of the procedures before the German Refugee Tribunal and a copy of the decisions of that Tribunal. He was informed by Citizenship and Immigration Canada to obtain those documents from Mr. Sunna because it was Mr. Sunna who provided them to the Canadian Embassy in Berlin.
[13] Further contact was made with the First Secretary on July 26, 2004 by the Applicants' new Canadian counsel who stated they would be making further submissions within 30 days once he had gathered all of the evidence. No submissions were made.
[14] Counsel for the Applicants advanced two principal arguments to quash the Tribunal's decision.
[15] First, he argues the Tribunal's decision in respect of Mr. Sunna's membership in the PKK is wholly inadequate or, perhaps put differently, the evidence supporting membership is insufficient. The basis of counsel's argument rests on the proposition that the notion of "member" in section 34 of the Act is not defined and that the badges of membership are not easily identified. That is the reason why he suggests the nature of the activities carried out by Mr. Sunna must be clearly identified through clear evidence and appropriately analysed.
[16] Second, counsel for the Applicants argues the Tribunal failed to consider Mr. Sunna's explanation on why he was switching stories now as to the nature of his persecution in Turkey - the switch from persecution because of political opinion due to his association with the PKK to religious persecution. The Applicants say that the failure to consider the explanation constitutes a breach of natural justice or an error in law.
[17] For the reasons set out below, these arguments must be rejected and this application for judicial review must be dismissed.
[18] In terms of the standard of review, both counsel agree, based on the Federal Court of Appeal's recent decision in Poshteh v. Canada (Minister of Citizenship and Immigration) 2005 FCA 85 that the question of whether Mr. Sunna was a member of an organization referred to in paragraph 34(1)(f) of the Act is to be reviewed on a standard of reasonableness primarily because that assessment is a question of mixed fact and law.
[19] The parties differed on the standard of review on the question of whether the Tribunal considered the explanation for recanting his story. Counsel for the Applicants suggests the failure to consider an explanation is a breach of natural justice and is an error of law. Counsel for the Respondent does not contest the obligation to consider the explanation for changing stories. Rather counsel for the Respondent argues that the Tribunal did consider the explanation, that it had the prerogative to do so and that its rejection of the explanation was not patently unreasonable. In my view, the standard of review in this case on this issue is reasonableness because that determination is not fact driven but is determined on whether it stands up to a somewhat probing analysis.
[20] On the record, I find Mr. Sunna was provided clear reasons why the First Secretary considered he had reasonable grounds to believe he was a member of the PKK, de facto or de jure. This reason was set out in his letter of May 20, 2004. The First Secretary based his preliminary determination on the fact both Mr. and Mrs. Sunna had indicated on several occasions to have voluntarily assisted the PKK in its activities both in Turkey and in Germany and that the information they gave showed that at the very least, both of them had provided material assistance to this terrorist organization contributing to its ability to engage in terrorist activities.
[21] It must be remembered that the standard of proof is not whether Mr. Sunna was in fact a member of a terrorist organization but whether the First Secretary had reasonable grounds to believe Mr. Sunna was. In Chiau v. Canada (Minister of Citizenship and Immigration) [2001] 2 F.C. 297, the Federal Court of Appeal held that "reasonable grounds" is a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes a bona fide belief in a serious possibility based on credible evidence.
[22] Moreover, the First Secretary set out the evidence on which he based the grounds of his belief and gave the Applicant, Mr. Sunna, an opportunity to address his concerns. No comments were made.
[23] On the basis of the record, it was reasonably open to the Tribunal to make the finding it did.
[24] On the second argument, the record shows that the First Secretary asked for an explanation of why Mr. Sunna left Turkey, why he switched grounds from his first refugee claim to his second refugee claim and why that explanation was rejected. The First Secretary came to the conclusion he did because of the Principal Applicant's lack of credibility given his inconsistent statements.
[25] Counsel for the Applicant did not challenge this credibility finding which was, on the record, open for the Tribunal to make.
[26] Counsel for the Applicants made other arguments which I need not deal with because their determinations are not central to the resolution of this judicial review application.
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. No questions are certified as no serious question of general importance arises from its disposition.
"François Lemieux"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10514-04
STYLE OF CAUSE: AHMET SUNNA
HATICE SUNNA
MESUT SUNNA
MAZLUM SUNNA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 6, 2005
REASONS FOR ORDER
APPEARANCES:
| LORNE WALDMAN
|
|
| TAMRAT GEBEYEHU
|
SOLICITORS OF RECORD:
|
LORNE WALDMAN WALDMAN & ASSOCIATES TORONTO, ONTARIO
|
|
| JOHN H. SIMS Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO |