Date: 20100914
Docket: IMM-286-10
Citation: 2010 FC 909
Ottawa, Ontario, September 14, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
KHAKIM KHAKIMOV
DILOVAR KADIROVA
AMIRBEK SOBIROV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Principal Applicant, his wife and young son are citizens of Uzbekistan who seek
protection in Canada pursuant to s. 96 and 97(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicants
claim to have been the subject of an extortion scheme by government officials
in Uzbekistan.
[2]
In a
decision dated December 8, 2009, a member of the Immigration and Refugee Board,
Refugee Protection Division (the Board) determined that the Applicants were
neither Convention Refugees nor persons in need of protection. The Board, in
its brief decision, did not appear to doubt the Principle Applicant’s testimony
regarding the extortion scheme that took place in Uzbekistan by “tax police officers”. However, the
Board concluded that:
·
The
Applicants’ fear of tax police who engage in criminal behaviour lacked a nexus
to a Convention refugee ground. Thus, the claim under s. 96 failed.
·
The
Applicants failed to rebut the presumption of state protection. Thus, the claim
under both s. 96 and 97(1) failed.
[3]
The
Applicants seek judicial review of this decision.
II. Issues
[4]
The key
issue in this application is whether the Board erred in its determination that
state protection was available for the Applicants by failing to have regard to:
1.
the
evidence of the Applicants that they had attempted to access state protection
in Uzbekistan; and
2.
the
documentary evidence that specifically addressed the corruption and problems of
state protection in Uzbekistan.
III. Standard of Review
[5]
As a
whole, the Board’s decision is reviewable on the standard of reasonableness. On
this standard, the Court
should not intervene where the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47). In
addition, the Court may grant relief if it is satisfied that the tribunal made
its decision without regard to the material before it (Federal Courts Act,
R.S.C. 1985, c. F-7, s. 18.1(4)(d)).
IV. Analysis
A. Attempt
to access state protection
[6]
In his Personal
Information Form (PIF), the Principal Applicant described the alleged extortion
by two tax police officers and outlined the following events that occurred
after the extortion had begun:
·
On
September 1, 2007, the Applicants sought the assistance of a family friend (the
friend), who worked for the tax department.
·
On
September 4, 2007, the friend found out that the two officers were working for
a senior official in the tax police, and told the Principal Applicant that he
would speak to their boss.
·
On
September 9, 2007, the friend told the Principal Applicant that he spoke to the
officer’s boss and the boss said that he “was very angry and did not like for
him to approach for any negotiations”.
·
On
September 15, 2007 the two tax police officers returned to the Applicant’s
business, very angry about the complaints made to their boss. The Principal
Applicant alleged that one of the officers punched him in the stomach, and hit
his brother-in-law in the face with a gun. They informed the Principal
Applicant and his brother-in-law that their punishment would be that they would
now be paying $1000.00 per month, and threatened them that “if you do not pay
we will kill you”.
[7]
The Applicants submit
that this evidence demonstrates that they did try to access state protection
contrary to the finding of the Board that:
The
claimants did not venture on pursuing state protection with a view of
mitigating their problems. The claimant only consulted a friend of his father
to see if he could help. As a consequence, the tax officers became enraged that
the claimant, directly or indirectly communicated with their superior.
[8]
The Board appears to
have ignored the argument of the Applicants that they had attempted to access
state protection, in approaching the friend, who in turn spoke with a senior
tax police officer. It was open to the Board to consider, and reject, that the
tax police formed part of the state apparatus. However, there was no discussion
in the reasons of this point.
[9]
The Applicants put
forward evidence which, in their view, established that they had sought state
protection; it was incumbent on the Board to consider this evidence. It may
have been open to the Board, upon a proper analysis, to determine that further
efforts ought to have been made. In the absence of any such consideration, I
conclude that the Board erred by failing to have regard to the evidence that
the Applicants had sought state protection.
B. Documentary
evidence of corruption
[10]
The
documentary evidence contained extensive references to problems of corruption
in Uzbekistan. The decision contains a
sweeping statement that “we acknowledge that there is corruption” and a few
references to documentary evidence to support its conclusion of adequate state
protection. Beyond this, the decision contains little to satisfy me that the
Board had regard to the evidence before it. I have two serious concerns with
the Board’s assessment of the documentary evidence in this case:
[11]
Firstly,
it is widely accepted that the Board cannot rely on documentation to uphold a
conclusion when it contradicts the same finding, without addressing the
contradiction in the analysis. See, for example, Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration)
(1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL). When citing the US DOS
report concerning the conduct of the police, the Board removed sentences that
were in direct contradiction to their point, instead of addressing the issue.
The Board erred in removing the statement out of context.
[12]
Secondly,
the Board relied on the arrest and conviction of Sandjar Umarov as evidence to
support the argument that the state is addressing issues of corruption. A
reading of the document relied on shows that independent, reliable sources
believe that Mr. Umarov’s arrest and conviction were politically motivated. In
its decision, the Board neglects to discuss the international objection to the
arrest on political grounds: for example, “the Bush administration and
international human rights organizations have criticized the arrest as being
politically motivated” [Applicant’s Record, p.29]. The Board, on this point,
came to a perverse conclusion on the evidence before it.
[13]
The
Respondent points out that the documentary evidence referring to arbitrary
arrests demonstrates that those individuals were human rights or political
activists, and not persons similarly-situated to the Principal Applicant. The
problem with this argument is that the Board does not consider this distinction
in its reasons. It may have been open to the Board to conclude, on its
review of the documentary evidence, that there was no evidence that
similarly-situated persons were routinely and arbitrarily arrested. However,
such an analysis, if done at all, was not contained in the reasons, and is not
open to the Respondent to now argue.
[14]
In short,
the Applicants presented evidence to support their argument that adequate state
protection could not be found in Uzbekistan.
The Board’s failure to adequately deal with this documentary evidence before it
leads me to the conclusion that the Court should intervene.
V. Conclusion
[15]
For these
reasons, I will allow this application for judicial review, and send the
decision back to the Board for redetermination.
[16]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed, the decision of the Board is
quashed and the matter is sent back to the Board for re-determination by a
newly-constituted panel of the Board; and
2.
No
question of general importance is certified.
“Judith
A. Snider”
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