Date: 19980205
Docket: IMM-1260-97
BETWEEN:
MARGARITA ENGOIAN
ARMEN AZATIAN
LILIA AZATIAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicants seek to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") set aside. The Board found the applicants to be citizens of Armenia. They assert that they are citizens of Azerbaijan.
[2] The applicants argue that the Board failed to assess all the evidence and, in particular, failed to note that there was contradictory documentary evidence on the file concerning the status of Azerbaijan residents who had fled to Armenia in 1990.
[3] The applicant Margarita Engoian is the mother of the other two applicants. She was born in Georgia, is ethnic Armenian, and was resident in Azerbaijan from 1981 to 1990. Her two children were born in Armenia but are also stated to be citizens of Azerbaijan.
[4] The panel gave its reasons for finding the three applicants to be Armenian citizens:
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The reasons for the panel's decision are as follows: |
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- the claimants have no documents to support their claims that they are nationals of Azerbaijan; |
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- Azerbaijan passed a new nationality law which came into force on January 1, 1991, after the claimants had left the country; |
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- Azerbaijan's new nationality law gives the government "a large margin of discretion" in determining who will be recognized as an Azeri subject, and in the case of Armenians born outside of Azerbaijan they will not be "entitled to the nationality of Azerbaijan." |
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- the claimant, her husband and her two children were all born outside Azerbaijan; the claimant in Georgia and her husband and children in Armenia; |
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- although the claimant and her husband lived in Azerbaijan from 1981 to 1990 as registered residents with a "propiska", this fact would not confer on them citizenship in Azerbaijan today; |
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- the claimant is the holder of a Soviet passport issued by Armenia in 1993 and valid for five years (C-1). This passport, which includes the minor claimants, is stamped "Property of the Republic of Armenia". |
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[5] Counsel for the applicants argues that the Board erred because it did not note that there was conflicting documentary evidence on the file, originating from the Armenian Embassy in Washington, D.C. The relevant part of the Board's decision reads:
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The panel notes that both in the claimant's PIF and in that of her husband, she and the children are listed as living in Armenia from 1990 to 1994. In addition, the panel notes that both the claimant's family and that of her husband live in Armenia and are Armenian citizens, making Armenia the most likely place for the claimant and her children to have resided from 1990 to 1994. The panel finds that, on a balance of probabilities, the claimant and her children lived in Armenia from the time they fled Azerbaijan in 1990 until the time they came to Canada in 1994. |
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This finding of fact is consistent with the issuance of an Armenian-stamped passport to the claimant and her children in July of 1993, one month after the claimant's husband came to Canada. With respect to the significance of this document, the panel relies on documentary evidence citing an attache at the Armenian Embassy in Washington, D.C. who states: |
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...ethnic Armenians who hold "foreign (Soviet) passports" issued in Armenia and who live in foreign countries may register with their respective Armenian embassies; such persons will be considered to be Armenians upon registration. |
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Following Bouianova the panel finds that it is open to the claimants to undergo the mere formality of registering with the Armenian Embassy in Canada in order to be recognised as Armenian nationals. In other words, Armenian citizenship is theirs for the asking. The panel, therefore, concludes that Armenia, not Azerbaijan, is the country of reference for these refugee claims. |
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The quotation in the Board's decision is taken from document AMN18189.E., dated September 12, 1994. That document sets out the response of an attache at the Armenian Embassy to the question of whether there was a process in place to consider Armenian citizenship applications from August 23, 1990 to the end of 1991.
[6] The documentary evidence with which this is said to conflict is AMN18190.E., also dated September 12, 1994. It reads, in part:
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Subject:...... Armenia: Information on the status of ethnic Armenians who fled to Armenia from Azerbaijan on 23 August 1990, and whether such Armenians were required to have propiskas for Armenia in order to be considered residents |
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Ethnic Armenians who fled to Armenia from Azerbaijan in August 1990 were considered to be refugees, and were not considered citizens or permanent residents of Armenia. Although Armenia did not have a citizenship law to deal with the status of such refugees at that time, some of these Armenians applied for citizenship. Armenian authorities granted citizenship status to all the members of a family who applied for citizenship if one of the parents was a citizen of Armenia. Families whose heads were both citizens of Azerbaijan were not entitled to Armenian citizenship. |
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Since most of the ethnic Armenians who fled to Armenia from Azerbaijan did not have ID cards or money, Armenian authorities issued them ID certificates. These ID certificates, which were "a kind of propiska", enabled these ethnic Armenians to receive necessities such as food coupons, housing and so forth. The issuance of such ID cards did not change their status in Armenia and they were still considered refugees. The attaché maintains that the final status of these refugees can be determined when Armenia adopts a citizenship law. |
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[7] I do not find these documents to be in conflict. The document cited by the Board refers to Armenians who hold "foreign (Soviet) passports" and who are located outside Armenia. The documents referred to in AMN181819.E are ID cards having a status similar to a "propiska", which is an internal residence registration document, not a passport for travel abroad. Also a reader of either of these documents is expressly instructed to refer to the other document, as well to other documents for information dealing with this subject matter.
[8] In AMN18189.E., the document to which the Board made reference and which relates to whether or not there was a process for dealing with Armenian citizenship applications between August 1990 and the end of 1991, the following further explanation is found:
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The attaché states that in the absence of a citizenship law, Armenian authorities had no clear criteria for determining the status of those refugees who were not entitled to Armenian citizenship according to the above-mentioned criterion. However, it was, and still is, within the power of Armenian authorities to consider applications for citizenship on a case-by-case basis. |
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[emphasis added]
[9] Counsel for the applicants referred to a statement in a January 1995 United States Department of State document (p. 106 of the Tribunal Record). The particular sentence that is referred to states:
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Not having adopted a citizenship law, Armenia still issues Soviet type international passports to individuals travelling oversees from that country. |
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As I understand counsel's argument, it is that this should be interpreted as indicating that Armenian Soviet style passports were being issued to individuals who were not considered by Armenia to be Armenian citizens. I am not persuaded that this is a fair interpretation of that particular passage when it is read in the context of the Department of State document as a whole. For example, that same document also states:
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Large numbers of Armenians who fled Azerbaijan and sought to resettle in Armenia subsequently continued on to Russia and other countries of the former Soviet Union. Although these individuals were permitted to resettle in Armenia, two factors worked in the opposite direction. One was the primitive economic and material situation which faced them in Armenia. Another was the fact that a high proportion of them had few family ties in Armenia and were native Russian speakers who did not know Armenian or spoke it poorly and felt uncomfortable in a country whose predominant language was Armenian. |
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[emphasis added]
[10] Lastly, the Board's decision was not that the applicants actually held Armenian citizenship but that they were entitled to it if they applied. Thus, it was to Armenia that reference should be made for the purpose of assessing their convention refugee claim.
[11] For the reasons given this judicial review application will be dismissed.
"B. Reed"
Judge
Toronto, Ontario
February 5, 1998
FEDERAL COURT OF CANADA
Date: 19980205
Docket: IMM-1260-97
BETWEEN:
MARGARITA ENGOIAN
ARMEN AZATIAN
LILIA AZATIAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1260-97
| STYLE OF CAUSE: MARGARITA ENGOIAN |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JANUARY 30, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: FEBRUARY 5, 1998
APPEARANCES: Hart Kaminker
For the Applicants
Brian Frimeth
For the Respondent
SOLICITORS OF RECORD: Hart A. Kaminker
MAMANN KRANC
Barristers and Solicitors
212 King Street West
Suite 410
Toronto, Ontario
M5H 1K5
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
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