Date: 20030613
Docket: IMM-2502-02
Citation: 2003 FCT 726
Between:
DMITRIY YELIFIRENKO
FIRIDA FATTAHOVA
TIMUR FATTAHOV
LYUBOV SHEVERDYAYENA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review of a decision of Post Claim Determination Officer R. Klagsbrun (the "PCDO"), dated May 8, 2002, wherein the PCDO determined that there was no reasonable possibility of risk to the applicants should they be returned to Azerbaijan.
All applicants are citizens of Azerbaijan whose Convention refugee claim was dismissed by decision of the Convention Refugee Determination Division on December 15, 2000. Their subsequent application to be accepted under the Post Determination Refugee Claimants Class ("PDRCC") was dismissed on February 13, 2002, because the principal female applicant did not establish her ethnicity, which had been the basis of both the original refugee claim and the PDRCC application. The principal female applicant, Firida Fattahova, claimed that she is at risk because she is of mixed Armenian and Azeri ancestry. The principal male applicant, Dmitriy Yelifirenko, and the minor male applicant, Timur Fattahov, claimed that they are at risk as the spouse and son of an ethnic Armenian. Lyubov Sheverdyayena is an ethnic Russian with no Armenian ancestry, but was included in the PDRCC application.
On April 29, 2002, counsel requested the reopening of the PDRCC decision because the principal applicant was then in possession of her original birth certificate, which she had been unable to obtain earlier.
The PDRCC decision was reopened, new evidence was submitted by the applicants, and the PCDO rendered a decision on May 8, 2002.
The applicants submit that the PCDO ignored or disregarded evidence presented by them.
In this case, the PCDO did not mention the explanation presented by the applicants in their counsel's letter to Enforcement Officer Hamlyn dated April 29, 2002, which reads as follows:
As I have brought to your attention before at the time of the preparation of PDRCC application my clients were not in the possession of several documents substantiating the Armenian ethnicity of the young female claimant Firida Fattahova. My clients were able to locate Firida's mother who, after fleeing from Azerbaijan, had settled together with her younger daughter Gayane in Ukraine as refugees, and who was able to provide my clients with the copies of her documents, substantiating the fact of her Armenian ethnicity.
The copies of such new documents, that were not produced at any time of PDRCC determination for the reason of not available at that time are:
The writer goes on to list documents pertaining to the principal female applicant's mother's ethnicity, none of which is the principal female applicant's birth certificate. It is reasonable to assume that the "copies of her documents" in the explanatory paragraph are the listed documents, and that "her" refers to the mother rather than the principal female applicant herself. Therefore, the explanation given cannot be considered an explanation of why the principal female applicant was able to procure her birth certificate when she had earlier testified that she was unable to do so. The PCDO did not err in not mentioning this "explanation" in the reasons.
The applicants also submit that the PCDO ignored other evidence establishing the principal female applicant's ethnicity, namely the documents provided by her mother. However, the PCDO clearly states that all documentary evidence was taken into consideration, including the applicants' submissions dated April 29, 2000. The PCDO also took into account the principal female applicant's birth certificate, despite its doubtful origins, which indicated that she is half Armenian, before reaching a final decision on the risk of return to Azerbaijan. There was no need for the PCDO to refer explicitly to the documentary evidence tendered by the applicants on April 29, 2002, since the principal female applicant's ethnicity was presumed for the sake of the risk analysis.
Finally, the applicants submit that the PCDO ignored documentary evidence which indicates that the situation of ethnic Armenians in Azerbaijan is bleak. However, the documentary evidence to which the applicants refer indicates only that there is widespread discrimination against Armenians in Azerbaijan, which is insufficient to prove that the applicants'lives or safety would be at risk if they returned to Azerbaijan. Therefore, it was not necessary for the PCDO to refer specifically to those portions of the country conditions evidence in the risk analysis. Furthermore, the fact that the reasons do not summarize all of the documentary evidence concerning the country of origin does not constitute an error of law (Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)).
As the applicants have not established that the PCDO exercised the discretion to determine whether the applicants are members of the PDRCC class pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2502-02
STYLE OF CAUSE: DMITRIY YELIFIRENKO, FIRIDA FATTAHOVA, TIMUR FATTAHOV, LYUBOV SHEVERDYAYENA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 20, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: June 13, 2003
APPEARANCES:
Mr. Hart Kaminker FOR THE APPLICANTS
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Hart Kaminker FOR THE APPLICANTS
Barrister and Solicitor
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario