Date: 20040824
Docket: IMM-5422-03
Citation: 2004 FC 1164
Ottawa, Ontario, this 24th day of August, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
HAGI ISRAFIL MAMISHOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Mr. Hagi Israfil Mamishov, claims to be a stateless person of mixed Armenian and Azerbaijan ethnicity who has a well-founded fear of persecution at the hands of Azerbaijan nationalists because of his Armenian nationality. In a decision dated June 18, 2003, a panel of the Immigration and Refugee Board, Refugee Protection Division (the _Board_) denied his claim. Mr. Mamishov seeks judicial review of this decision.
Issues
[2] Mr. Mamishov raises three issues:
1. In limiting the evidence presented at the hearing to the issue of identity and deciding his claim on the basis of the identity evidence alone, did the Board breach the rules of natural justice?
2. Did the Board fail to meet Mr. Mamishov's legitimate expectations by taking initial steps to verify the Azerbaijani passport but then proceeding with the hearing without obtaining this verification?
3. Did the Board err by finding that Mr. Mamishov's passport is genuine in the face of his testimony that it was not, and given that the Board did not itself verify the authenticity of the passport?
Board's Decision
[3] The Board made two key findings. The first of these was that Mr. Mamishov is not stateless; he is a citizen of Azerbaijan. This conclusion was founded on the Board's belief that Mr. Mamishov's Azerbaijani passport was genuine. The second key finding was that Mr. Mamishov's mother and, hence, Mr. Mamishov, is not of Armenian ethnicity.
[4] These two key findings led the Board to conclude as follows:
Based on my findings concerning the claimant's citizenship and his mother's ethnicity, I find, on a balance of probabilities, that the incidents described in his narrative did not happen . . . These problems were based on his alleged mixed ethnicity, which I find not credible or trustworthy.
Analysis
Issue #1: Did the Board breach the rules of natural justice by not examining Mr. Mamishov on the merits of his claim to refugee protection?
[5] The hearing of Mr. Mamishov's claim took place over two days. For the most part, the hearing on those two days focussed on the issues of: (a) the citizenship of Mr. Mamishov; and (b) whether his claim of Armenian ethnicity was credible. At the end of the second day, prior to final submissions of counsel, the Board outlined the procedure as follows:
What we're going to do is I would like to hear submissions and observations with respect to the issues that we discussed to this point, and then after that I will come to a determination with respect to those issues, and it may be that I'm able to provide you with a final decision at that point or it may be that I will have to reconvene the hearing to hear further evidence from you with respect to other issues that we haven't addressed.
[6] Counsel for Mr. Mamishov and the Refugee Protection Officer (_RPO_) made their submissions. No objections to this method of proceeding were made.
[7] Mr. Mamishov now argues that, if the hearing had continued and he had been heard on the merits of his claim, the Board may have come to a different conclusion on the subjective fear that he faced. However, a reading of the transcript of the two days of hearing indicates that Mr. Mamishov's counsel was well aware of the Board's interest in the first two issues and that those issues were determinative. In short, Mr. Mamishov (through his counsel) was aware that the Board might reject his claim on the basis of these identity-related issues and implicitly agreed to that approach. No concern was expressed at that time. Accordingly, such an objection cannot now be raised.
[8] In any event, I am satisfied that the two issues dealt with extensively at the hearing and in the decision are determinative of the claim. A review of the record, including the Port of Entry notes, the Personal Information Form (PIF) and the transcript of the hearing indicate that all alleged incidents of persecution took place because of Mr. Mamishov's alleged Armenian ethnicity. The Board found that the only two documents that provided any information about his ethnicity were a false birth certificate and a military card that did not establish the Armenian ethnicity of his mother.
[9] If he could not establish this central component of his claim to the Board, he could not possibly succeed. He was questioned extensively on this issue and given further opportunities to gather and present evidence.
[10] Mr. Mamishov submits that his argument is supported by a number of cases (Kaur v. Canada (Minister of Employment and Immigration (1993), 21 Imm, L.R. (2d) 301 (F.C.T.D)), Li v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1109 (T.D.) (QL); Mercier-Néron v. Canada (Minister of National Health and Welfare (1995), 98 F.T.R. 36)). However, having reviewed this jurisprudence, I am satisfied that it does not help Mr. Mamishov. In the mentioned cases, the claimants had been prevented from presenting evidence or making their cases. As noted, this hearing was conducted in a way that was agreed to by Mr. Mamishov; he was not prevented from presenting relevant testimony or evidence.
[11] In conclusion on this issue, I am satisfied that the Board's manner of proceeding was known and agreed to by the parties and did not result in a breach of the rules of natural justice.
Issue #2: Did the Board fail to meet Mr. Mamishov's legitimate expectations?
[12] One of the Board's key findings was that Mr. Mamishov is not stateless; he is a citizen of Azerbaijan. This finding was reached mainly on the basis of an Azerbaijani passport presented by Mr. Mamishov at the Port of Entry. Although he initially told officials that the passport was genuine, he subsequently denied its validity.
[13] During the first day of the hearing, the Presiding Member asked Mr. Mamishov whether he would have any objection to the Board _checking with the government in Azerbaijan to determine if your passport is a genuine one_. After the first hearing day, a formal request was made by the Board in the following language:
Please confirm whether Azerbaijani passport number PO642935 was properly issued by the Azerbaijani authorities to Havi Israfril Mamishov ...
[14] That request was forwarded to an immigration officer at the Canadian Embassy in Ankara, Turkey. His response was as follows:
[T]he only possible way to verify the information would be to send the information on the file to the Embassy of Azerbaijan. Considering that I reviewed this case myself, I can tell you that I was satisfied that it was a genuine passport. I can also say due to the nature of the applicant's visit to Canada, there was and is still little reason in my mind to believe that the passport was improperly issued.
[15] No further inquiries were made and no further evidence was produced on the authenticity of the passport. Mr. Mamishov was aware of this evidence and did not seek to introduce further evidence in respect of the passport.
[16] Mr. Mamishov argues that the request by the Board to a third party to have the passport independently evaluated raised legitimate expectations that such a verification procedure would be followed. In his view, the failure to follow through and obtain verification from the Embassy of Azerbaijan was a reviewable error. I do not agree.
[17] The parties accepted that the doctrine of legitimate expectations can be established in this case by satisfying the elements set out in Canada v. Lidder (Minister of Employment and Immigration (1992), 136 N.R. 254 at para. 22 (F.C.A.). Those elements are as follows:
- a representation of fact made with the intention that it be acted upon or that a reasonable person would assume that it was intended to be acted upon;
- that the representee acted upon the representation;
- that the representee altered his position in reliance upon the representation and thereby suffered a prejudice.
[18] For purposes of this analysis, the _representation_ consists of the actions of the Board that allegedly led Mr. Mamishov to conclude that the Board would obtain verification of the passport from the Embassy of Azerbaijan.
[19] Having reviewed the record, including the letters, e-mails and memos on the subject of the passport, I am satisfied that there was no representation by the Board to verify the passport in any particular way. At best, the actions of the Board can be characterized as an undertaking that it would make inquiries about the passport. That was done. Further, there certainly was no promise or statement that the Board would assume all responsibility for gathering evidence with respect to the passport or that Mr. Mamishov was relieved of any obligation to obtain or put forward any further evidence on this critical element of his refugee claim. In the end, it was open to the Board to obtain whatever evidence it could reasonably obtain. Provided that the Board disclosed to Mr. Mamishov whatever information it obtained and gave Mr. Mamishov an opportunity to respond to the evidence, there has been no breach of natural justice.
[20] Finally, it is clear from the transcript of the second day of the hearing that Mr. Mamishov knew that the Board was proceeding on the basis of the opinion from the Canadian embassy and would not be requesting further information on the passport. It was open to Mr. Mamishov, at this point, to rectify any potential prejudice caused to him by making independent inquiries himself or presenting supplemental evidence to bolster his claim that the passport was not genuine. He did not do so; nor did he request permission to do so. In my view, even if the failure of the Board gave rise to legitimate expectations or a breach of natural justice (which I do not believe), Mr. Mamishov's behaviour was an implied waiver of the alleged breach.
[21] In these circumstances, the Board did not err in failing to obtain verification of the passport from the Azerbaijani Embassy.
Issue #3: Did the Board err by relying on Mr. Mamishov's passport as genuine?
[22] Mr. Mamishov submits that the Board erred in relying on the evidence from the immigration officer in concluding his passport is genuine. This argument is effectively that the Board's conclusion on the validity of the passport was patently unreasonable.
[23] In coming to its conclusion on the validity of the passport, the Board was required to weigh the evidence before it. Certainly, the best evidence of the authenticity of the passport would have been a statement from the Azerbaijani Embassy. However, in the absence of such evidence, the Board had before it the statement of the immigration official. This official was an immigration officer at the Canadian Embassy in Turkey who sees passports every day and who was familiar with the circumstances of Mr. Mamishov. As such, he has some knowledge of passports and has no interest in the outcome of the Board proceedings. Although he acknowledged in his correspondence that the only way to get absolute proof of the authenticity of a passport would be to send it to the Azerbaijani Embassy, his opinion deserves to be given considerable weight.
[24] On the other hand, the only other evidence before the Board on the issue of the passport was from Mr. Mamishov himself. He originally told immigration officers that his passport was valid. Later his story changed. It is obvious that a valid passport would destroy his claim of being stateless. In my view, it was not unreasonable for the Board to prefer the testimony of the immigration official and to conclude that the passport was valid. There is no reason for me to interfere with the Board's conclusion.
Conclusion
[25] For these reasons, I conclude that this application for judicial review should not succeed.
[26] Mr. Mamishov proposes that the following question be certified:
Does fairness require that all of the evidence on the merits of a claim be heard prior to the Board making its decision?
Given my conclusion on the first issue that Mr. Mamishov was not prevented from presenting evidence on his claim, this question does not need to be answered.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and,
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5422-03
STYLE OF CAUSE: HAGI ISRAFIL MAMISHOV v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 4, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: August 24, 2004
APPEARANCES:
Ms. Barbara Jackman FOR APPLICANT
Mr. Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Barbara Jackman FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada