Federal Court Decisions

Date: 20020111

Docket: IMM-1232-01

Neutral citation: 2002 FCT 30

BETWEEN:

                                                 ANAR IBRAHIM OGLI ISMAYLOV

AYSHAN FAIG KUZI NURIYEVA

FAIG FIRUDIN OGLI NURIYEV

RANA KULI KUZI NURIYEVA

Applicants

- and -

THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                            REASONS FOR ORDER

GIBSON J.

[1]                 These reasons arise out of out an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the Applicants not to be Convention refugees within the meaning given to that expression in subsection 2(1) of the Immigration Act^[1]. The decision of the CRDD is dated the 7^th of February, 2001.

[2]                 The Applicants are citizens of Azerbaijan. Rana Kuli Kuzi Nuriyeva (the "Principal Applicant") claims to be of Armenian ethnicity. It is directly and indirectly on the basis of the Principal Applicant's claimed ethnicity that the Applicants allege they were persecuted in Azerbaijan. It is also the basis, together with perceived political opinion, on which they fear they would again be persecuted if required to return to Azerbaijan. The CRDD determined that the Principal Applicant simply failed to establish her Armenian ethnicity and that therefore the Applicants had failed to establish an objective basis for a well-founded fear of persecution if required to return to Azerbaijan. The basis for the CRDD's determination was essentially twofold; first, it concluded that the Principal Applicant did not speak Armenian and was unable to present sufficient credible or trustworthy evidence about Armenian customs and traditions; and secondly, it concluded that the Applicants failed to present any reliable original identity documents that could identify the Principal Applicant or her mother as Armenian.

[3]                 The CRDD noted a psychological report with respect to the Principal Applicant that was before it and that indicated she was suffering from chronic Post Traumatic Stress Disorder and a Major Depressive Disorder. The CRDD did not question the symptoms diagnosed. Nonetheless, there is nothing whatsoever indicating that the CRDD took into account the diagnosis when it described the Principal Applicant's evidence regarding Armenian customs and traditions as very brief and lacking in detail.

[4]                 The CRDD had before it significant documentation identifying the Principal Applicant's Armenian ethnicity. Three allegedly official documents were dated in 1990 and one in 1988. A purportedly official letter confirming the authenticity of one of the 1990 documents was dated in 2000. The CRDD wrote:

Prior to deciding these cases the panel received counsel's post-hearing document, composed of a letter issued by the Ministry of Jurisprudence of Azerbaijan, confirming that the birth certificate of the principal claimant [one of the documents dated in 1990] is issued by their office. However, in view of the unreliability of the newly issued documents from the former Soviet republics, the letter in question does not address the panel's concern with respect to the principal claimant's duplicate birth certificate.

[5]                 The only support cited by the CRDD for its concern with the documentary evidence before it was found in a newspaper article published in the United States in 1999 which referred to the "... thriving fake document industry in the former Soviet Union, ...". Additionally, the CRDD found implausible the Applicants' explanation as to why earlier documentation had been destroyed and replaced by the documentation of 1988 and 1990.

[6]                 I conclude that it simply was not open to the CRDD to determine that, on the basis of the totality of the evidence before it, the Principal Applicant's Armenian ethnicity was not established on a balance of probabilities. A thorough reading of the transcript of the hearing before the CRDD leads me to conclude that the CRDD's conclusion was simply perverse.^[2] In the result, this application for judicial review will be allowed.

[7]                 A further issue is worthy of note. The Principal Applicant's son died in the course of military service in Azerbaijan under suspicious circumstances and while the Applicants were still living in Azerbaijan. The Principal Applicant's husband, also one of the Applicants, requested an inquiry into the death. His request was rejected. He spoke out against the authorities and was threatened. Two months later, in January of 1999, he was abducted and later beaten and threatened by unknown persons. He sought medical treatment and the police intervened. He underwent a court medical examination and provided a statement to the effect that he believed his captors were members of the military who were seeking to suppress his inquiries.

[8]                 During the course of his final submissions before the CRDD, counsel for the Applicants noted:

So I emphasize the grounds that they're not just nationality and ethnicity. There's political opinion or perceived political opinion based both on ethnicity and regardless of ethnicity, ...^[3]

[9]                 The CRDD failed completely to address the issue of perceived political opinion as a ground for the Applicants' claim. I am satisfied that this omission on the part of the CRDD constitutes a further reviewable error.

[10]            In the result, this application for judicial review will be allowed. The decision of the CRDD that is under review will be set aside and the Applicants' application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.

[11]            Neither counsel recommended certification of a question. No question will be certified.

                                                                                                      J.F.C.C.                       

Ottawa, Ontario

January 11, 2002

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