Saftarov v. Canada (Minister of Citizenship and Immigration)

Toronto, Ontario, July 21^st, 2004

Present: THE HONOURABLE MR. JUSTICE O'REILLY 

BETWEEN:

HASAN SAFTAROV, LALA RIZAYEVA, and

NARIMAN SAFTARLI, and SURA SAFTARLI

by their Litigation Guardian, HASAN SAFTAROV

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1] Mr. Hasan Saftarov, his spouse, Lala Rizayeva, and their two children arrived in Canada from Azerbaijan in 2000. They applied for refugee status on the basis of Mr. Saftarov's claims of political persecution. A panel of the Immigration and Refugee Board denied their claims because it was not persuaded by the evidence he presented. In addition, the Board concluded that Mr. Saftarov could not claim refugee status because he was an accomplice to crimes against humanity. Mr. Saftarov and his family argue that the Board erred in its analysis of the evidence and in its conclusion that he was involved in serious human rights abuses. They ask me to order a new hearing.

[2] I agree that the Board made serious errors and will grant this application for judicial review.

I. Issues

1. Did the Board err in its treatment of the documentary evidence Mr. Saftarov supplied?

2. Did the Board err in its conclusion that Mr. Saftarov was excluded from the definition of a refugee due to his involvement in crimes against humanity pursuant to s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?

II. Analysis

[3] The two issues that arise in this case interrelate. I will deal with them together.

[4] Mr. Saftarov was a member of the police force in the city of Baku. Documentary evidence showed that the police in Azerbaijan are known to be responsible for serious violations of human rights. Mr. Saftarov claims that he was aware of abuses, but did not participate in them. In fact, he says that he never even made an arrest. Further, he claims that he made repeated efforts to expose misconduct within the force. He says that his superiors reacted by firing him. But each time they did so, he managed to get himself reinstated.

[5] Mr. Saftarov also said that he became politically active in the Musavat Party. He claims to have been beaten as a result of his activities.

[6] The Board found it implausible that a person who had been a member of the police force had never made an arrest, was dismissed for making complaints about his colleagues and managed to get reinstated on the force afterwards. Without corroborative evidence, the Board could not accept Mr. Saftarov's version of events.

[7] Mr. Saftarov could not supply documentary evidence of the complaints he filed. He said that these were in the possession of his wife's parents who were reluctant to send them out of the country because of their fear that authorities would open their mail and punish them for their complicity. The Board said nothing of this explanation.

[8] Mr. Saftarov did have documents recording his dismissals and reinstatements, but the Board gave them no weight, concerned that the documents were photocopies, did not appear to have official government letterhead and did not have any other security features. He also had copies of medical reports that substantiated his claims of having been beaten by fellow officers and, later, by political adversaries. The Board did not consider these.

[9] The Board concluded that Mr. Saftarov could not prove his unlikely story of being a police officer who fought against abusive conduct from within the force and was persecuted for his political associations. Having discounted Mr. Saftarov's version of events, the Board found that he was a knowing participant in the human rights abuses carried out by the Baku police and, therefore, was involved in the commission of crimes against humanity. He could not, therefore, present a claim for refugee protection according to s. 98 of the Immigration and Refugee Protection Act. Further, it found that he had no basis for his allegation of persecution in any case.

[10] The Board is entitled to make findings of fact and its conclusions are generally subject to considerable judicial deference. It is also entitled to find that a claimant's story is implausible. However, the Court is often in an equally good position to assess the plausibility of the version of events put before the Board: Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 875 (T.D.) (QL), Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (T.D.) (QL).

[11] In this case, I am troubled by the Board's handling of the documentary evidence. But I need not decide whether its approach constituted reviewable error because, in my view, the Board erred in its analysis of the issue of exclusion - that is, whether Mr. Saftarov was disentitled to seek refugee status because of his involvement in crimes against humanity.

[12] As mentioned, after rejecting Mr. Saftarov's account of agitating for reform from within the police force, the Board concluded that he must have been an accomplice in the human rights violations for which the Baku police were notorious. However, there was no evidence that Mr. Saftarov was a knowing participant in crimes against humanity. The Board accepted that the police force may have had legitimate functions and, therefore, was not the kind of organization for which mere membership would automatically amount to proof of complicity in serious crimes. In other words, it was not "an organization . . . principally directed to a limited, brutal purpose" (Ramirez v. Canada (Minister of Employment of Immigration), [1992] 2 F.C. 306 (C.A.) at para. 16).

[13] The Board may have been entitled to conclude that Mr. Saftarov did not fight against his colleagues' misconduct but it could not assume, based solely on his long-time, low-ranking membership in the police, that he was a party to crimes against humanity. Similarly, it may have had grounds to disbelieve Mr. Saftarov's claim that he never made an arrest. But, again, this is not evidence that he was involved in human rights abuses.

[14] Accusing someone of crimes against humanity is a serious matter. Some evidence of knowing participation in serious crimes is required. Alternatively, an inference of involvement can be drawn from proof of membership in an organization primarily dedicated to human rights abuses. However, neither is present in this case.

[15] Accordingly, I will allow this application for judicial review. Neither party proposed a question of general importance for me to certify and none is stated.

JUDGMENT

THIS COURT'S JUDGMENT IS that:

1. The application for judicial review is granted.

2. No question of general importance is stated.

"James W. O'Reilly"

J.F.C.

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET: IMM-4718-03

STYLE OF CAUSE: HASAN SAFTAROV, LALA RIZAYEVA, and

NARIMAN SAFTARLI, and SURA SAFTARLI

by their Litigation Guardian, HASAN SAFTAROV

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JULY 12, 2004 

REASONS FOR JUDGMENT

AND JUDGMENT BY: O'REILLY J.

DATED: JULY 21, 2004

APPEARANCES BY: 

Ms. Krassina Kostadinov 

FOR THE APPLICANTS

Mr. David Tyndale 

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Waldman & Associates

Toronto, Ontario

FOR THE APPLICANTS

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE RESPONDENT

FEDERAL COURT

Date: 20040721

Docket: IMM-4718-03

BETWEEN:

HASAN SAFTAROV, LALA RIZAYEVA, and

NARIMAN SAFTARLI, and SURA SAFTARLI

by their Litigation Guardian, HASAN SAFTAROV

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

AND JUDGMENT