Date: 20020306
Docket: IMM-5616-00
Neutral citation: 2002 FCT 252
Toronto, Ontario, Wednesday the 6th day of March 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
GAGIK AIVAZIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Gagik Aivazian is a citizen of Armenia who claims a well-founded fear of persecution if he returns to Armenia where he says he will be severely punished and harmed because the government is searching for deserters from the military, and he deserted his military service. Mr. Aivazian brings this application for judicial review from the September 26, 2000 decision of the CRDD that he is not a Convention refugee.
THE FACTS
[2] Mr. Aivazian testified that during the conflict over Nagorno Karabakh he was forcibly recruited and taken to a military centre in Yerevan to be sent to a war zone. En-route he escaped and returned to his home, only to be beaten, along with his father, by five armed men who broke into his home the next day. The men took him to the military commissioner's office. From there he and two others jumped from a third floor window and ultimately escaped to Russia. From Russia, Mr. Aivazian went to Poland, then to Germany where he made an unsuccessful refugee claim, then to Denmark, where he was returned to Germany and kept under guard in a refugee camp. He subsequently travelled to Canada where he applied for status as a Convention refugee.
THE DECISION OF THE CRDD
[3] The panel stated that the determinative issue was whether the harm feared by Mr. Aivazian constituted persecution by reason of one of the grounds encompassed in the definition of Convention refugee, or whether it constituted prosecution for a law of general application.
[4] The panel made no finding that Mr. Aivazian was not credible in his testimony. The CRDD apparently accepted that Mr. Aivazian was a military deserter, and recited with apparent acceptance Mr. Aivazian's testimony that the military had come to his parents' home asking about him as recently as two weeks before the hearing, and that his name and picture are on signs indicating that he is a military deserter. The CRDD described his testimony to be that people in his position "are sent to war and are killed".
[5] The CRDD then went on to note that in September of 1997 Armenia had accepted in principle a peace settlement with respect to the disputed Nagorno Karabakh enclave, and that a cease-fire remained in effect. After reviewing a May 1999 Response to Information Request ("RIR") which reported as to a November 1997 fact-finding mission by the Danish Immigration Service to investigate the status of draft evaders, conscientious objectors and deserters in Armenia, the CRDD concluded that Mr. Aivazian's "fear of being sent to war and killed is not objectively based".
[6] The CRDD concluded its reasons in the following terms:
In clarification of the law on the issue of persecution versus prosecution, the Federal Court of Appeal in Zolfagharkhani v. Canada (MEI) set out some general propositions, as follows, relating to the status of an ordinary law of general application in determining the question of persecution:
The panel finds that the harm that is feared by the claimant cannot be characterized as persecution by reason of one of the grounds in the definition of a "Convention refugee", but relates instead to prosecution for a violation of a general law of Armenia. In any event, there is no evidence that this law is currently being widely applied, let alone in a persecutory manner. The panel prefers the documentary evidence to that of the claimant because it comes from a variety of objective and independent sources, which have no interest in the outcome of these proceedings. [footnote omitted]
THE ISSUE
[7] Mr. Aivazian asserts that the decision of the CRDD was based on an erroneous finding of fact, and made in a perverse or capricious manner without regard to the evidence before it.
ANALYSIS
[8] As noted above, the panel, in its analysis, described Mr. Aivazian to testify that people in his position are "sent to war and are killed" and concluded that "his fear of being sent to war and killed is not objectively based". However, in response to the question of who he feared, Mr. Aivazian had testified that he feared the Armenian military police. He went on to testify:
Counsel: What is it that you think or are afraid would happen to you if you went back and the Armenian military police detained you?
Claimant: They have a law for those ones who did not serve in the army. They have to spend in prison, from three to ten years. And after that they send people to the army, but people do not come back from the army.
Counsel: Now, how do you know that's what happened to people?
Claimant: It's all well known and the people who are at the back, who are behind the backs, they shoot and they say that they were surrendered, so that was why they did not stay alive. I have a friend who lost his both legs. I have a friend who lost his hand and I don't want to die and I don't want to kill anyone, so this is why I don't want to go to the army. And they still persecute me. My picture is still on the police bulletin board.
[9] As to the treatment which deserters face, the panel accepted as persuasive information given to the Danish Immigration Service referred to in the RIR to the effect that deserters who do not return voluntarily are, when caught, normally sentenced within the military system and that the basic penalty is extra service of up to three years in a special military unit. The panel particularly quoted that the military prosecutor was willing to give his word that no deserter sent back from Denmark would be subject to criminal prosecution or in any way persecuted provided the prosecutor received a list of the deserter's personal details.
[10] In view of the CRDD's reliance on this document it is important to note that the RIR also noted that the Centre for Democracy and Human Rights had tried in vain to obtain statistics from the Armenian Ministry of Defence on the number of military prosecutions and their outcome, that the local offices of the United Nations Human Rights Committee ("UNHRC'), the International Organization for Migration ("IOM") and the International Committee of the Red Cross had been unable to obtain statistics from Armenian authorities on sentencing practices with respect to deserters, and that the UNHRC and the IOM had heard of the special disciplinary unit in which deserters served their sentences, but had no specific information on conditions there.
[11] Also before the CRDD were two reports from Amnesty International which documented cases of forcible conscripts being severely beaten after refusing to perform military service, and relatives being illegally detained as hostages to secure the attendance of deserters. Those reports were footnoted by the CRDD in its reasons, on another point, but this evidence was not referred to by the CRDD.
[12] Also not mentioned by the CRDD was the United States Department of State, Armenia Country Report on Human Rights Practices for 1998 which reported that armed forces recruiters sometimes take hostages to compel the surrender of deserting relatives, and that under pressure from human rights groups the military had taken some steps to improve the investigation of peacetime deaths of servicemen due to mistreatment, but that military officers are rarely held accountable for widespread abuse of troops under their authority.
[13] A further report not referred to by the CRDD was the 2000 Human Rights Watch World Report which noted the unwillingness of authorities to investigate complaints of abuse, including torture and abuse in the army, and that security forces routinely beat detainees during arrest and interrogation.
[14] It is a trite law that it is for the CRDD to weight the evidence before it, and a reviewing court should not substitute its view of the facts. The CRDD is a tribunal with specialized knowledge and recognized expertise in assessing evidence within that specialized knowledge. Thus, its findings of fact are reviewed on the standard of whether they were made in a perverse or capricious manner, or without regard to the material before it.
[15] In assessing the evidence, the CRDD is obliged to consider all of the documentary evidence before it which is directly relevant to a claim.
[16] While the CRDD is not obliged to refer to every piece of evidence before it which is contrary to its finding, Evans J., as he then was, explained the CRDD's obligation in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at paragraph 17 in the following terms:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[17] In the present case, the CRDD relied upon one RIR to conclude that Mr. Aivazian would be of no interest to the military authorities and to conclude that there was no evidence the law with respect to desertion was widely applied or applied in a persecutory manner.
[18] The CRDD did not in its reasons mention Mr. Aivazian's evidence that his father had been summoned to a military court in lieu of Mr. Aivazian and was allowed to leave after disowning his son, or to Mr. Aivazian's evidence that after prison, deserters are sent to the Army from which they never return. Nor did the CRDD consider in its reasons the documentary evidence referred to above that confirmed reports of, among other things, the illegal detention of relatives as hostages, torture and abuse in the army, and peacetime deaths of servicemen due to mistreatment.
[19] In view of the relevance of Mr. Aivazian's testimony on those points, and the corroboration of that testimony in the documents, it was an error for the CRDD to rely upon the one RIR without adverting to the contradictory evidence and giving its reasons for preferring the RIR. While the panel stated it preferred the documentary evidence to Mr. Aivazian's testimony, it did not refer to the documents which corroborated central aspects of Mr. Aivazian's testimony.
[20] By simply stating that the panel preferred the documentary evidence to that of Mr. Aivazian, without dealing with the documentary evidence which supported Mr. Aivazian's testimony, I conclude that the CRDD reached its conclusion without regard to the material before it.
[21] This error was fundamental to the CRDD's decision and for that reason its decision must be set aside.
[22] For these reasons the application for judicial review will be allowed. Counsel posed no question for certification and no question is certified.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated September 26, 2000 is set aside. The matter is remitted for redetermination before a differently constituted panel of the CRDD.
2. No question is certified.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
March 6, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5616-00
STYLE OF CAUSE: GAGIK AIVAZIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, FEBRUARY 6, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: WEDNESDAY, MARCH 6, 2002
APPEARANCES BY: Mr. Robin Morch
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD: Robin Morch
Barrister & Solicitor and Notary Public
1137 Royal York Road
Suite 1010C
Toronto, Ontario
M9A 4A7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020306
Docket: IMM-5616-00
BETWEEN:
GAGIK AIVAZIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER