Date: 20040317
Docket: IMM-1585-03
Citation: 2004 FC 414
Toronto, Ontario, March 17th, 2004
Present: The Honourable Mr. Justice Phelan
BETWEEN:
EKATERINA GUEORGUIEVA GARMENOVA
(a.k.a. Ekaterina Garmenova)
DIMITAR TODOROV GARMENOV
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under s-s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("IRB").
[2] The IRB determined that both of the Applicants (Garmenova is the female Applicant; Garmenov is the male Applicant) are not Convention refugees or persons in need of protection in part because of credibility findings regarding Garmenov.
[3] The Applicants raise a number of issues in this application however the matter can be determined on the credibility issues arising with respect to Garmenov. In view of the disposition of this application and the referral back to the IRB, no finding on other issues of fact or law will be made.
BACKGROUND
[4] The Applicants are Bulgarian citizens of Macedonian ethnicity, married to each other with a 12 year old daughter. The female Applicant was the principal claimant.
[5] The Applicants claimed refugee status on the grounds of their Macedonian ethnicity and the male Applicant's political involvement with OMO Illinden, an organization advocating protection for the Macedonian minority in Bulgaria.
[6] The Applicants claim firstly that Macedonians are a persecuted minority in Bulgaria and that Garmenov specially had been subject to persecution including beatings and physical violence at the hands of Bulgarian authorities because of his political beliefs.
ISSUE
[7] The critical issue is whether the IRB's findings of credibility and the facts found to ground the credibility finding are patently unreasonable.
ANALYSIS
[8] The Respondent argues that despite some factual errors in the IRB's decision, there is sufficient correct evidence to support the IRB's decision. This evidence includes the country condition reports, the Applicants re-availment to Bulgaria and the delay in submitting the refugee claim.
[9] However, I find that the errors made are significant; they go to the very essence of the IRB's own finding in respect of Garmenov's credibility. The IRB's decision cannot be saved by what may be other correct findings.
[10] I conclude that the IRB failed to meet the standard for providing adequate reasons and failed to support its negative credibility determination as required by Hilo v. Canada (Minister of Employment and Immigration), (1991) 15 Imm. L.R. (2d) 199.
[11] A number of the errors in the IRB's decision, such as mixing up events related to the male and female Applicants, confusing the Macedonian political organization with the political party formed by that organization and similar matters may individually be explained away as typographical errors or inconsequential matters. However, their cumulative effect is to suggest that the IRB was either careless in its reasons or suffered under a true misapprehension of the facts.
[12] The IRB in reaching its credibility finding correctly described the process by which it is required to look not only at each fact which causes concern but the cumulative impact of all those facts. This is to avoid a microscopic examination of any applicant's claim and to ensure that the Board has all the facts in context.
[13] The IRB enumerated its credibility concerns and then made the following finding:
I recognize that none of the credibility concerns raised herein is sufficient on its own to negate the claim. However, in my opinion, the cumulative effect of all of them is such that I do not have sufficient credibility and trustworthy evidence upon which to base a determination that the claimants are convention refugees or persons in need of protection.
[14] The parties agree that at least three factual errors were made in assessing credibility:
a) misconstruing the evidence related to Garmanov's passport as support for the conclusion that he was not targeted by Bulgarian authorities;
b) concluding that Garmanov had fabricated a story about his own arrest in August 2000 whereas the arrest described was of Garmanov's father; and
c) in the face of corroborative evidence of a pattern of arrests extending from 1998 to late 2001, rejecting without reasons, evidence of Garmanov's arrest in July 2001.
[15] Each of these events is highly relevant to the Applicants' claims concerning the attitude and actions of Bulgarian authorities towards either of them specifically, Macedonians generally, and those more broadly holding views adverse to Bulgarian government policies.
[16] The IRB is entitled to reject the presumption of credibility accorded an applicant (see Adu v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 114).
[17] However, to do so the IRB must analyse the facts and explain the basis for rejecting sworn testimony (see Maldonado v. Canada (Minister of Employment and Immigration) [1980] 2 F.C. 302 (F.C.A.).
[18] The IRB failed to carry out these obligations. It made reviewable errors either by patently incorrectly assessing facts or failing to properly consider relevant facts.
[19] For these reasons, this application must be granted and the IRB decision quashed.
[20] The parties agreed that there is no question to be certified.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is granted.
2. The decision of the Refugee Protection Division of the Immigration Appeal Board dated February 21, 2003 is hereby quashed.
3. The matter is referred back to the Immigration Appeal Board to be heard before a different member(s) of that Division.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1585-03
STYLE OF CAUSE: EKATERINA GUEORGUIEVA GARMENOVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 25, 2004
REASONS FOR ORDER
AND ORDER: PHELAN J.
DATED: MARCH 17, 2004
APPEARANCES:
Ms. Helen Turner For Applicants
Mr. Gordon Lee For Respondent
SOLICITORS OF RECORD:
Helen Turner For Applicants
Toronto, Ontario
Morris Rosenberg For Respondent
Deputy Attorney General of Canada
FEDERAL COURT
TRIAL DIVISION
Date: 20040317
Docket: IMM-1585-03
BETWEEN:
EKATERINA GUEORGUIEVA GARMENOVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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