Date: 20031010
Docket: IMM-4258-02
Citation: 2003 FC 1185
Ottawa, Ontario, this 10th day of October, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
FIKRAT IBRAHIMOV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Fikrat Ibrahimov (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated August 30, 2002. In its decision, the Board found that the Applicant was not a Convention refugee.
[2] The Applicant is a citizen of Azerbaijan. He is part Armenian as his mother is Armenian; his father is Azerbaijani. He bases his claim for Convention refugee status on a fear of persecution in Azerbaijan because of his Armenian ethnicity. He claims that he is perceived as Armenian as he has Armenian physical characteristics, in addition to being the son of an Armenian mother.
[3] The Applicant claimed that he was denied entrance to the university in 1988 due to his part Armenian ethnicity. From the late 1980's onwards he claimed that the treatment of Armenians in Azerbaijan worsened, fuelled by the outbreak of conflict between Azerbaijanis and Armenia in 1988. He claimed that his mother was fired from her job as a Russian language teacher due to her Armenian background and that on Christmas day in 1989, an Armenian church in Baku was burned.
[4] The Applicant claimed that he and his father moved his mother out of Azerbaijan at the beginning of January 1990 to Krasnodar, Russia. Ten days later, attacks on Armenians began in Baku, and many Armenians were wounded and killed. The Applicant says that he and his father had to return to their jobs in Baku in February 1990. On March 25, 1990, he was attacked while in a café in Baku and sustained a stab wound to the hand. His attackers yelled ethnic slurs at him and threatened his friends not to be seen with him again. After this time, the Applicant claimed that the situation became more bearable and he was able to find work until May 1994.
[5] Later in 1994, the Applicant moved to the town of Zakatala on the border between Azerbaijan and Georgia, where his maternal aunt lived. The Applicant claimed that in September 1998, nationalists from the extreme wing of the People's Front attacked several homes in Zakatala. He had been away from home at the time and when he returned, he found his aunt dead. Other Armenians in the town were also killed. He immediately left that town and returned briefly to Baku, where he found the situation intolerable, as he was kicked, verbally harassed and had things thrown at him when he left his apartment.
[6] At the beginning of September 2000, the Applicant claimed to have received a phone call where the caller threatened him with rape if he did not leave the country. He left Azerbaijan on October 6, 2000. He made his claim for Convention refugee status in Canada on October 8, 2000 and his case was heard before the Board on June 24, 2002.
[7] In its decision, the Board accepted that the Applicant was part Armenian. However, it rejected his claim that the problems he claimed to have experienced in Azerbaijan were due to his Armenian ethnicity, because of its findings on his overall credibility.
[8] The Board found that the Applicant had not been refused entrance to university on account of his Armenian background in 1988, at a time when Azerbaijan was part of the USSR and before the conflict between Armenia and Azerbaijan erupted.
[9] The Board accepted documentary evidence that showed that Armenian Azerbaijanis faced, and continue to face, widespread discrimination in employment. It also accepted that the attack by armed men in the café in March 1990 occurred as described by the Applicant. However, the Board found that the evidence connecting this attack to the Applicant's Armenian ethnicity was not persuasive. The Board came to this conclusion because the only evidence that linked this attack to his Armenian ethnicity was the Applicant's evidence, and they had doubts concerning his credibility. Thus, they could not rely on his evidence.
[10] The Board found the Applicant to be not credible for a number of reasons. First, through a negative inference from a discrepancy between the dates as to when he received the telephone call threatening him with rape. In his Personal Information Form ("PIF") he stated the call was in September 2000, and in his oral testimony he said the call was in May 2000. Since this was the event which caused him to feel fear for his life, the Board found it reasonable to expect that he would accurately recall the date. Next, the PIF only mentioned one telephone call, however in his oral testimony, the Applicant referred to receipt of many such calls. The Board did not believe the Applicant's claim that his father's neighbours harassed him and found that he had made up these incidents to bolster his claim.
[11] The Board also found that the Applicant lacked a subjective fear of persecution in Azerbaijan because he had lived in that country for ten years enduring the ongoing harassment. The Board found that this delay was unreasonable for someone who was truly fearful. The Board also commented that the Applicant's brother remains in that country. He married and has a family. The Board concluded that the Applicant's delay in leaving calls into question the whole of his evidence concerning his fears.
[12] As an alternative finding, the Board found that even if it had found the Applicant credible relative to material aspects of his claim, the documentary evidence did not support his allegations. The Board noted that the U.S. Department of State Report on Azerbaijan did not address any widespread activity by nationalists and extremists but mentioned only widespread discrimination faced by Armenians in that country.
[13] The Board found it reasonable that attacks mentioned by the Applicant would have been reported. As the documentary evidence "contradicted the claimant's testimony", the Board preferred the documentary evidence.
[14] On the basis of the material filed and the written and oral submissions made by counsel, I am satisfied that the Board has committed a reviewable error in the manner of its disposition of this Applicant's claim.
[15] In my opinion, the Board's reasons show that it erred in not coherently analysing the cumulative nature of the discrimination and harassment which the Applicant claimed to fear. The Board summarizes its conclusion at the end of its reasons as follows:
Therefore, in light of the documentary evidence, the claimant's testimony on the situation for persons of mixed Armenian ethnicity and the finding of a lack of subjective fear arising from his lengthy delay, the panel finds, on a balance of probabilities, that the claimant has failed to discharge the onus upon him to establish that there is a serious possibility that he would be persecuted if he were to return to Azerbaijan. Specifically, the panel finds that what the claimant might encounter would be discrimination rather than persecution.
[16] Despite making this final conclusion concerning the issue of discrimination versus persecution, the Board's reasons do not squarely address the issue of whether all the incidents that the Applicant alleged, from the late 1980's until he left Azerbaijan in 2000 could have cumulatively amounted to persecution.
[17] As well, the Board erred, in my opinion, in the manner in which it dealt with the alleged delay in the Applicant's departure from Azerbaijan. Delay was a critical reason why the Board rejected this claim. Although the Board acknowledged the principal in Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.), that delay is a relevant but not decisive factor in determining whether a refugee claimant has a subjective fear of persecution, the Board then went on to say in its reasons as follows:
...the panel finds, on a balance of probabilities, that the claimant's substantial delay in leaving Azerbaijan, the situs of his alleged persecution, is fatal to his claim, as in the panel's view, it demonstrates a lack of subjective fear. Further, the panel finds that this delay calls into question the credibility of the whole of his evidence.
[18] In my view, this reasoning shows that delay not only affected the Board's assessment of the subjective element but also was a significant factor underlying its assessment of the Applicant's credibility. In this case, reliance on the issuance of delay to doubt an individual's credibility does not seem logical.
[19] Furthermore, in my opinion, 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. Cumulative acts which may amount to persecution will take time to occur. If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.
[20] For these reasons, I conclude that this application for judicial review should be allowed. The matter will be remitted to a differently constituted panel of the Board for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4258-02
STYLE OF CAUSE: FIKRAT IBRAHIMOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 02, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: OCTOBER 10, 2003
APPEARANCES BY: Mr. Jack Davis
For the Applicant
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD: Mr. Jack Davis
Barrister and Solicitors
Davis & Grice
706-1110 Finch Ave West
Toronto, Ontario M3J 2T2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031010
Docket: IMM-4258-02
BETWEEN:
FIKRAT IBRAHIMOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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