Date: 20010420
Docket: IMM-3748-00
Neutral citation: 2001 FCT 367
BETWEEN:
Lilifar SABIROVA
Alina SABIROVA
Faruh SABIROV
Abdusshukur SABIROV
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The applicants, citizens of Kirghizistan, allege a well-founded fear of persecution by reason of their imputed political opinions and membership in a particular social group, the Uygurs.
[2] The relevant facts are quite straightforward. The applicant, Abdusshukur Sabirov, the father of Alina and Faruh and husband of Lilifar, spoke in public in 1998 against the view advocated by three men, Uygurs from Turkestan and China, that armed force was required to "liberate" Uygurs in their respective countries. Mr. Sabirov took the position that peaceful solutions, by way of political and diplomatic dialogue, were preferable to violence.
[3] Sometime after these speeches, the three men were arrested and extradited to China where they were executed. Rumours then spread that Mr. Sabirov was a police informer and had caused the arrest of the three men. The applicants' evidence was that the families of the three men were seeking revenge and that they could not obtain state protection. As a result thereof, they sought protection in Canada.
[4] In its decision, the Board indicated that Mr. Sabirov's political opinion "was one of denouncing the internal policies of China". The Board is correct that Mr. Sabirov's opinion is in regard to China. However, that opinion has nothing to do with the alleged persecution. The evidence is that the alleged persecution results from the suspicion that Mr. Sabirov denounced the three men to the police.
[5] The question which arises from the evidence is whether acts of violence against Mr. Sabirov's son, resulting from the suspicion that Mr. Sabirov is an informer, i.e. a traitor, constitute persecution on Convention grounds. In my view, the Board did not address this question which ought to have been addressed.
[6] Rather, the Board seemed to be of the view that because Mr. Sabirov's opinion did not concern his country, i.e. that his opinion was in respect of China, the alleged persecution could not fall within Convention grounds. At page 3 of the decision, the Board expresses its view as follows:
In order to invoke "political opinions" or "imputed political opinions", as a ground of persecution, the claimant must establish that it is a political opinion for which his country of nationality is persecuting him or one for which it cannot provide adequate protection. In the claims at bar, the claimant's political opinion was one denouncing the internal policies of China. The evidence did not establish any grounds of persecution linked to Kirghizistan. Consequently, the panel finds that the claimant has failed to establish that a nexus exists.
[7] The Board, in my view, is confused with respect to the nexus required between the alleged persecution and the grounds upon which Convention protection may be given. A claimant must show a well-founded fear of persecution and that his fear is based on one of the grounds prescribed by the Convention.
[8] Because of its view that the "acts of violence" resulted from a desire for revenge, the Board concluded that the acts did not constitute persecution. In my view, this is an error. The specific reason for the "acts of violence" is not relevant. What matters is whether the acts of "revenge" amount to persecution and, if so, whether they can be linked to a Convention ground.
[9] With respect to the Board's other finding, namely that the applicants' country could adequately protect them, I also am of the view that the Board erred. In support of its conclusion, the Board referred to exhibit P-8, a certificate issued by the head of the Sverdlovsk Police Department, which provides as follows:
This document is issued to citizen Lilifar Ayazovna Sabirova, living in the city of Bishkek, Sovetskaya STR, building 101 app. 112, in confirmation of the fact that her son, Faruh Abdushkurovich, born on April 12, 1985, was attached in 1999. Consequently, a criminal investigation following a complaint was launched under number 3-99-3445 from Sept 9, 1999 and another investigation under number 3-99-3850 from October 10, 1999, was launched as a result of theft and extortion.
Investigation number 3-99-3445 was closed for insufficient data about the attackers whereas investigation number 3-99-3850 continues. [...]
[10] What the document shows is that the police began two investigations, one of which is still in progress and the other closed because of insufficient information regarding the attackers. Whether or not the state can adequately protect the applicants is an entirely different question. In my view, the reasons given by the Board do not really address the issue. The evidence led by the applicants was that the police had no intention of protecting them. This information was given to the applicants by the lawyer retained by them. As the Board made no adverse finding regarding the applicants' credibility, it had to assess state protection in the light of the evidence before it. In my view, it did not do so.
[11] For these reasons, the Board's decision cannot stand. The decision will therefore be set aside and the matter will be returned to a differently constituted panel for re-hearing and re-consideration.
Marc Nadon
JUDGE
O T T A W A, Ontario
April 20, 2001.