Date: 20021113
Docket: IMM-5708-01
Neutral Citation: 2002 FCT 1164
Between:
NIZAMI GADIROV
IRINA VIACHESLA GADIROVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated November 19, 2001, determining them not to be Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicants, Nizami Gadirov (the "male applicant") and Irina Gadirova (the "female applicant"), are husband and wife. Both are citizens of Russia. The male applicant was born in Azerbaijan but is not a citizen of that country, and the female applicant is an ethnic Russian. The male applicant bases his claim on nationality (Azerbaijani), membership in a particular social group (persons in mixed marriages) and political opinion (perceived). The female applicant bases her claim on membership in a particular social group (persons in mixed marriages).
The Board's determination reads as follows, at paragraph 3 of the decision:
The panel made a general finding of lack of credibility and determined that there is insufficient credible or trustworthy evidence upon which to base a positive decision.
The Board supports its decision with the following reasons:
- The male applicant ran a successful construction business in Rostov-on-Don, for which he had obtained government permits.
- The male applicant had travelled abroad seven times between 1997 and 1999, and did not make a refugee claim in any of the European countries he visited at that time.
- The male applicant did not consider moving to Azerbaijan, where he would be entitled to citizenship on the basis of birth. He considered it onerous to begin business in a new environment.
- There is no evidence that either applicant faced persecution as a result of their marriage. The female applicant received a stipend from the national government before and after her marriage.
The applicants submit that the Board erred in law by failing to provide reasons in support of its conclusion and decision, particularly as it related to issues such as credibility and the documentary evidence.
For his part, the respondent submits that the Board clearly did not make a general non-credibility finding. The respondent contends that the sentence in the Board's decision regarding the "general finding of lack of credibility"is not a finding, but rather, a stray sentence which has no impact on the surrounding reasons, and which can only be characterized as a minor or clerical error, a "slip" in the drafting which cannot serve to impugn the dismissal of the claims.
I am of the view that the Board in this case made a "general finding of lack of credibility", without fulfilling its duty of explaining its adverse finding in clear and unmistakable terms (see Hilo v. Canada (M.E.I.) (1992), 15 Imm.L.R. (2d) 199 (F.C.A.)). It does not clearly address any of the specific incidents of persecution raised by the applicants. The Board's determination is a coherent and deliberate sentence, too precise to constitute a "slip"or error. In my view, this major error taints the entire decision and is, therefore, sufficient to warrant the intervention of this Court.
Consequently, the application for judicial review is allowed and the matter is sent back to a differently constituted Board for reconsideration.
JUDGE
OTTAWA, ONTARIO
November 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5708-01
STYLE OF CAUSE: NIZAMI GADIROV
IRINA VIACHESLA GADIROVA
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 16, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 13, 2002
APPEARANCES:
Mr. David Yerzy FOR THE APPLICANTS
Mr. Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
David Yerzy FOR THE APPLICANTS
Barrister and Solicitor
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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