Date: 20010426
Docket: IMM-4721-99
Neutral Citation: 2001 FCT 391
BETWEEN:
NAZIM VAGIF OGLI EMIRBEKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] The applicant, Nazim Emirbekov, seeks judicial review of the August 19, 1999 decision of the Convention Refugee Determination Division ("CRDD") denying his claim to Convention refugee status.
[2] In September 1998, the applicant, in the company of his grandmother, came to Canada from Azerbaijan, seeking refuge from persecution. The grandmother based her claim to a well-founded fear of persecution on the ground of nationality, and the applicant based his claim on nationality and political opinion. The grandmother's claim was successful on the basis of her Jewish ethnicity; the applicant's claim was denied.
[3] The applicant is a citizen of Azerbaijan of mixed ethnicity. He is the son of a Lezgin and Armenian father and a Russian and Jewish mother. The applicant recounts experiencing a number of problems since the age of 10 or 11, which he attributes to his Armenian ethnicity. Azeris taunted, insulted, and beat him. This situation forced him to change schools in grade ten, and eventually to stop attending university.
[4] The applicant relates that while attending university he was harassed repeatedly by other students. In two separate incidents, he was beaten by fellow students: in March 1997 he was beaten, but the police officer who broke up the fight took no action against the perpetrators. Instead, the officer told the applicant the assailants were right and that he should leave before he added to what they had done. In May 1998 students prevented him from entering the campus and told him not to return, "or they would destroy me". When the applicant explained he was a student and had the right to attend classes, they beat him. The police were not contacted. The applicant's grandmother added him to her passport and made plans to leave the country.
[5] In addition to his fear of persecution in everyday situations, the applicant states he is now eligible to be conscripted into what he considers a violent military environment. Therefore, he fears he will be severely treated or killed, because as an identifiable Armenian non-Azeri, he will be perceived as an enemy.
[6] The CRDD accepted the applicant's grandmother was a Convention refugee. Although she is non-practising, she is Jewish, and readily identifiable as such, her last name ending in the suffix "shvili". The panel concluded she had been forced to leave her place of employment, had been harassed and physically abused, and would face more than the mere possibility of serious harm were she to return to Azerbaijan because of her Jewish ethnicity.
[7] As for the applicant, the CRDD accepted his ethnicity as Armenian, non-Azeri, but found the events he described amounted to discrimination, but not persecution. The panel also found there was no objective basis for his fear of returning to Azerbaijan because of his Armenian ethnicity or because of his fear of military service. The decision states: "Although the male claimant said he would have difficulty in finding employment or a place of residence if he were to return, the well-established position of his family and the fact that his sister is experiencing no difficulty belies this.".
[8] The CRDD also noted that: "The claimant voluntarily left the university where he was taking law when the family sent him to Canada. There is no evidence before the panel to indicate he could not return there to complete his higher education.".
[9] As to his fear of conscription, the panel stated: "The documentary evidence does not corroborate the claimant's allegations that he would be severely treated in the army and even killed. It speaks of modification of the regulations to release those forty-five or older from the armed services.... The only specific negative reference the panel could find in the documentary evidence to limitations on conscripts was that military papers are needed before a young person can travel internationally. The panel does not find this requirement to be persecutory.... The panel finds his fear of death from hazing, etc. in the military is speculative only.". Further, there was no evidence that the applicant's family had received any notice of conscription concerning the applicant.
[10] The applicant raised two issues on the application for judicial review. Because the first issue is determinative of the matter, there is no need to discuss the second issue.
[11] The applicant submits the CRDD erred in arriving at its decision by failing to consider relevant evidence and by relying on irrelevant evidence in finding that there is no objective basis to his fear of persecution because of his mixed-ethnicity.
[12] In Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 at paragraph 15 and 17, Tremblay-Lamer, J. concluded that "... the appropriate standard of review for determinations of whether or not there is more than a mere possibility that the Applicant would face persecution if he were to return to India remains patent unreasonableness" and that "At the end of the day, the decision will have to stand a thorough examination by the reviewing Court in order to enable the Court to evaluate if the tribunal's reasons are in accordance with the evidence to ensure that they are not clearly illogical or irrational.".
[13] In the present case, the applicant argues the CRDD erred by failing to consider the grandmother's evidence in support of his claim. The grandmother's Personal Information Form ("PIF") and her testimony indicate that many of the problems she encountered were due not to her Jewish ethnicity but to being recognized as a non-Azeri minority and often as Armenian. The panel found the grandmother's testimony to be entirely credible, commenting it had been given "...in a straightforward manner without exaggeration. She made no attempt to embellish her testimony...". The applicant maintains his grandmother's evidence should have been taken into account in the CRDD's assessment of the risk to him as a person perceived to be non-Azeri and Armenian. Since the CRDD found the grandmother's evidence to be completely credible, and since she gave evidence of being persecuted because she was often regarded as Armenian the applicant submits the CRDD's finding that there is no objective basis for his fear of persecution is perverse.
[14] Although the grandmother stated her problems stemmed in large part from being recognized as Armenian, the CRDD's reasons focus on her being readily identifiable as Jewish, and the documentary evidence related to Jewish people and violence against women in Azerbaijan. Her claim was accepted because of her Jewish ethnicity. As the respondent rightly points out, the applicant, in both his PIF and his testimony, attributed the difficulties he encountered to his Armenian ethnicity and not to his mixed or Jewish background. In these circumstances, the fact that the panel did not take into account the grandmother's evidence in its consideration of the applicant's claim does not constitute reveiwable error.
[15] The applicant also takes issue with the panel's findings regarding his family's social and economic status, his sister not experiencing difficulties, the availability of higher education should he return to Azerbaijan, and that the basis for his fear of military service is speculative.
[16] The transcript at pages 186-189 of the record indicates the applicant did not state his family is currently well-established. The presiding member asked the applicant if his family was well-to-do, and the applicant indicated it was, but that his father had lost his job because of his ethnicity, and had been unemployed for four or five years. His mother had never worked. At page 186 of the record, the transcript shows the applicant states "Well, our family had some savings, so – and also there was equipment in the house, so equipment is sold, and also other belongings, they'd sell out all the belongings.".
[17] Rather than describing a well-to-do family experiencing no difficulties in their day-to-day lives, as the reasons suggest in explaining the applicant's lack of objective fear, the applicant's evidence portrays a family that was once well-off, but which must now sell possessions, live on what remains of its savings, and move frequently to avoid harm. Although the applicant did testify his sister had not experienced significant problems, he also testified that this was because she was still young, his parents moved frequently, and she had changed schools three times to avoid discovery of her ethnicity.
[18] With respect to the CRDD's finding that the applicant's fear of severe treatment or death in the military is speculative, the applicant argues this finding was made without regard to the evidence and took into account irrelevant evidence. The applicant points to the 1999 Amnesty International report (Application Record at page 61) that specifically details the allegations of torture and ill-treatment during brutal hazing of new recruits by or with the tacit consent of senior officers. This report, together with the well documented anti-Armenian sentiment in Azerbaijan, and the conflict between the Azerbaijan army and Armenia supports the applicant's submission. As well, the documentary evidence relied on by the panel that those over the age of forty-five are being released from the army is irrelevant. That the applicant himself will be subject to mandatory military service if he returns to Azerbaijan, and the anti-Armenian sentiment that awaits him there, give rise to his fear of military service. In this context, the CRDD's finding that the applicant's fear is speculative is unreasonable.
[19] The respondent argued that even if the CRDD did make a perverse finding of fact, it is not central to its ultimate finding that the applicant had failed to establish an objective basis for his fear of persecution. However, in this case, the CRDD's finding with respect to the objective basis for the fear rests entirely on its findings regarding the social and economic well-being of the applicant's family, his access to higher education should he return to Azerbaijan, and the speculative nature of his fear of military service.
[20] In my view, in making its findings of fact the CRDD misconstrued the applicant's evidence, considered irrelevant evidence, and failed to consider relevant evidence.
[21] For these reasons, the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
April 26, 2001