Date: 20000825
Docket: IMM-3988-99
Between:
VARDAN MELKONYAN
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The application is seeking judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on July 23, 1999, which concluded that the plaintiff was not a refugee and that there was no credible basis for his claim under s. 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiff is a citizen of Armenia who alleges he fears persecution in his country by extremist nationalist groups on account of his nationality, his political opinions and his membership in the Azeri minority. The plaintiff's father, born of an Armenian father and Azeri mother, was killed by Armenian nationalists in 1988.
[3] In 1992 the plaintiff fled to Russia to avoid being forcibly enrolled in the army and having to fight in the war against Azerbaïdjan. The plaintiff was arrested in Moscow because he was in an illegal position and deported to Armenia in December 1992. In January 1993, he was summoned by the army but hid. In the following April he was arrested and sentenced to three years' imprisonment for desertion, a sentence which he served from June 1993 to June 1996.
[4] A few days after he got out of prison the plaintiff was attacked by Armenian nationalists. He was in hospital for two weeks and then received death threats by telephone at his home in Erevan. After fleeing to another city the plaintiff wrote the public prosecutor's office in an unsuccessful attempt to obtain protection from the authorities.
[5] In August 1996 the plaintiff was again attacked by nationalists. After learning that his wife and children had been in Belgium since his imprisonment in June 1993, the plaintiff decided to go to that country, where he claimed refugee status. His application was dismissed in December 1997. On December 24, 1997 the plaintiff arrived in Montréal and claimed refugee status the same day.
[6] In the decision judicial review of which is requested, the Refugee Division concluded that there was a total lack of credibility in the plaintiff and the evidence submitted by him. According to the plaintiff, the panel's judgment resulted from an error in assessing the facts and the evidence. He further argued that he submitted credible and trustworthy evidence in support of the merits of his claim.
[7] I consider that in the case at bar the Court should intervene and quash this decision by the Refugee Division.
[8] The panel found the application not credible because the plaintiff had contradicted himself about his contacts with his wife since his imprisonment in 1993 [TRANSLATION] ". . . and that he had no contact with his family since. He added that he was unable to find them in Belgium".1 The evidence in fact disclosed that the plaintiff did not see his family in Belgium after he arrived there following his release from prison in June 1996,2 but it did show that since October 1988 he had contacted his wife by telephone two or three times a month.3
[9] The panel also considered that the plaintiff had not established the essential point of his Azeri affiliation, as it attached no evidentiary value to a document purporting to corroborate this fact, namely the birth certificate of his father4 whose mother was of Azerbaïdjani nationality. The panel attached no credibility to this document because it was dated January 10, 1935, and certified a birth that occurred 11 months later, on December 28, 1935. I feel that the Refugee Division, in so doing, attached undue importance to a [TRANSLATION] "mechanical lapse"5 which frequently happens at the beginning of a year, when a document has to be dated in relation to an event which occurred late in the preceding year, especially as there was ample evidence of his Azeri descent. This can be seen simply by reference to the Personal Information Form of the plaintiff's mother6 - she was admitted to Canada as a refugee - whose account of events7 described the persecution suffered by the family because of its Azerbaïdjani descent.
[10] Finally, the Refugee Division found:
| . . . improbable and frivolous the plaintiff's claim that the authorities forcibly attempted to enrol him in the war against Azerbaïdjan, when he was an Azeri. It is illogical to think that the military authorities would have taken the risk of forcing an Azeri to fight his compatriots in the adjoining country." |
Because of the documentary evidence in the record that the Armenian authorities were trying to recruit all young people over eighteen,8 I feel the conclusion arrived at by the panel is unreasonable. There is nothing in the evidence from which the panel could conclude that it would be illogical for an Azeri to be called up to fight his compatriots in Azerbaïdjan.
[11] In short, the Refugee Division rendered a decision based on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.
[12] For these reasons, the decision must be quashed. There is no basis in the case at bar for certifying a serious question of general importance.
ORDER
The application for judicial review of the decision by the Refugee Division of the Immigration and Refugee Board, dated July 23, 1999, is quashed [sic]. Consequently, the matter must be referred back to the Board for re-hearing before a panel of different members.
PIERRE DENAULT
Judge
Ottawa, Ontario
August 25, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-3988-99
STYLE OF CAUSE: Vardan Melkonyan
- and -
The Minister of Citizenship
and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 16, 2000
REASONS FOR ORDER BY: DENAULT J.
DATED: August 25, 2000
APPEARANCES:
Evelyne Fiset FOR THE PLAINTIFF
Normand Lemyre FOR THE DEFENDANT
SOLICITORS OF RECORD:
Evelyne Fiset FOR THE PLAINTIFF
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
__________________
1 Panel's Record (P.R.), p. 5.
2 Panel's Supplementary Record (P.S.R.), p. 21.
3 P.S.R., pp. 24-25.
4 P.R., p. 377.
5 See translator's note in margin of document - P.R., p. 377.
6 P.R., pp. 417-428.
7 P.R., pp. 425-426.
8 P.R., pp. 357, 367, 372 and 384.
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