Date: 20020410
Docket: IMM-772-01
Neutral citation: 2002 FCT 411
Toronto, Ontario, Wednesday, the 10th day of April, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
VALENTIN LAZAROV SOKOLOV
KREMENA KIRILOVA SOKOLOVA
VALENTIN VALENTINOV SOKOLOV
DENNIS VALENTINOV SOKOLOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated January 26, 2001, wherein the CRDD determined that the Applicants were not Convention refugees.
[2] The Applicants are ethnic Turks and citizens of Bulgaria. Ethnic Turks have faced a long and well-documented history of persecution in Bulgaria under the previous Communist regime. Along with other ethnic Turks, the Applicants were forced to leave Bulgaria in 1990. The Applicants resided in Germany and in 1993 German authorities returned the Applicants to Bulgaria when a democracy was established.
[3] The principal Applicant submitted a detailed account of what life was like for his family upon their return to Bulgaria. This account is part of the record before the CRDD in this case. What follows is a summary of these facts.
[4] Upon their return to Bulgaria, the Applicants were detained at the border and interrogated for 8 hours. Their passports were seized and the Applicants were required to sign an undertaking to return to their hometown, live at their former residence and report to the police within one week.
[5] When the Applicants returned to their hometown, they were unable to move into their former home as it was occupied by Bulgarians, i.e., non-Turks. The local head of police had been a director of the secret police during the Communist regime. He has personally been involved in abusive and discriminatory practices. The head of police recognized the principal Applicant and stated that he had personally sent the principal Applicant's father to a prison in Belene. He interrogated the principal Applicant about his activities in Germany and required him to sign in weekly at the police station.
[6] The principal Applicant subsequently had difficulties obtaining employment. These difficulties combined with the continued police interference in his life, led the principal Applicant to engage in political activities in protest. The principal Applicant joined an opposition group, the DPS. He attended meetings, handed out flyers, and campaigned on behalf of the group in the 1994 parliamentary elections.
[7] At the conclusion at one such meeting, the principal Applicant was arrested by the police, detained for one week, interrogated and beaten. The principal Applicant was released from police custody after his wife paid a bribe to the local head of police.
[8] Throughout this time, the principal Applicant continued to be unable to find employment. Consequently, he and his wife opened a restaurant in his hometown in 1995. Later that year, the DPS held a rally. The principal Applicant was again arrested, beaten, and detained for 3 days.
[9] After this incident, the principal Applicant states that the police and nationalists opposed to the DPS began to attend his restaurant. The head of police demanded money to extend the restaurant permit and the principal Applicant felt he had no choice but to pay.
[10] The principal Applicant's political involvement extended to having secret opposition meetings in his restaurant. After these meetings began, the principal Applicant was threatened. He reported the incident to the police. A new head of police was in power and the principal Applicant was told the matter would be looked into, but to his knowledge, nothing further was done.
[11] In 1997, the principal Applicant's car was stolen from his restaurant parking space and the former head of police attempted to extort money from him for the return of the car. The principal Applicant paid and the car was returned damaged. After this incident, members of the police force and nationalists began attending the restaurant and eating without paying. They harassed and physically abused the restaurant staff who were also ethnic Turks.
[12] In 1998, three police officers known to be nationalists entered the restaurant and continued to abuse the staff. The principal Applicant confronted them and in response one officer fired his weapon in warning and as a threat. The principal Applicant reported this incident to the police and the next day the same officers kidnapped him, threatened and beat him. The principal Applicant again reported this incident to the police.
[13] Soon after the principal Applicant began to receive threatening phone calls at home and feared for the safety of his family. This harassment continued until 1999. At this time, the principal Applicant brought a complaint to the chief prosecutor for the entire district. The principal Applicant was subsequently arrested by the local police and beaten. His restaurant was destroyed and their dog was hung from the ceiling.
[14] After 6 years of harassment, the principal Applicant and his family made arrangements to be smuggled out of Bulgaria and ultimately arrived in Canada. The Applicants made a Convention refugee claim based on their ethnicity, their political opinion.
[15] Despite this lengthy cogent evidence of significant persecution, the CRDD determined that the Applicants were not Convention refugees. When referring to elements of the Applicants' account, the CRDD used phrases such as "If the details of his story are to be believed" and "again assuming the account is believable" to make negative inferences regarding the principal Applicant's credibility. In the result, the CRDD concluded that the Applicants "failed to provide sufficient credible or trustworthy evidence to show that they have good grounds for fearing persecution in Bulgaria for any Convention reason".
[16] Even though it is apparent on the face of the decision that the Applicants were not found credible, the CRDD made a decision based on the following version of the facts:
The Sokolovs made the following allegations of fact. In 1990, Mr. Sokolov and his wife were exiled from Bulgaria. They returned to Bulgaria in 1993. In 1995, they opened a restaurant in the city of Momchilgrad. During a municipal election campaign in October 1995, Mr. Sokolov was arrested at a rally and detained for three days. On April 2, 1998, three police officers from the local station attended at the restaurant demanding free meals and causing much commotion. The next day Mr. Sokolov reported the incident to police. On April 4, 1998, the same three officers assaulted Mr. Sokolov. Once again he attended at the police station and a report was taken. The three officers continued to attend at the restaurant. In February 1999, Mr. Sokolov made a complaint with the chief prosecutor in Kirdjali. In March 1999, Mr. Sokolov was taken from his home and brought to the Romelgrad police station, detained and beaten for having made the complaint. He was left at the city dump. The next morning Mr. Sokolov was found by a young acquaintance who took him home. He discovered that his restaurant had been destroyed. His wife and children went to stay with her mother. Mr. Sokolov joined them at the end of March and they left Bulgaria in June 1999. They travelled to Mexico and the United States of America (USA) before arriving in Canada on June 16, 1999 (Applicant's Record, p.8).
[17] Thus, the CRDD created an anomalous situation where a negative credibility assessment was made, but then a decision regarding nexus and the availability of state protection was made based on a part of the alleged facts. The CRDD then determined that the Applicants were not Convention refugees because the documentary evidence before the panel did not "generally support the contention that someone with the profile of Mr. Sokolov or any of his immediate family members has good grounds for fearing persecution in Bulgaria for any of the reasons advanced". On this point, the CRDD also made the following statements:
While there are reports of some continuing discriminatory practices and the existence of anti-Turkish sentiments within the ranks of nationalist groups, there is little evidence of the kind of systematic and pervasive discrimination and harm directed against ethnic Turks which might amount to persecution. Indeed, one human rights report indicates the position of the UNHCR on this subject as such: "in light of the changes in the country and protection provided to this ethnic group, refugee status cannot be justified on account of mere membership in this ethnicity" (Applicant's Record, p.9).
[18] The Applicants submit that the CRDD erred in failing to deal with a large number of factors that would arguably have led to a finding of persecution. In my opinion, this position also has merit.
[19] In its reasons, the CRDD erred from the outset by failing to properly characterize the nature of the Applicants' claim. Instead of recognizing the potential grounds as ethnicity and political opinion, the CRDD narrowed the claim in terms of the Applicants' "ethnicity, their profile as successful business people, and their family background".
[20] In my opinion, the CRDD oversimplified the Applicants' case and in doing so erred in law by failing to address whether or not there was a nexus to the ground of political opinion and erred in fact by failing to take into account relevant evidence that was before them.
[21] The summary of facts provided in the CRDD's reasons fails to account for 5 years during which various incidents of persecution occurred. By removing the context in which the harassment and violence against the principal Applicant took place, the CRDD mischaracterized the conduct of the police officers who acted against the Applicants. The CRDD concluded that "the actions of these men were criminal and corrupt actions by individuals, rather than abuse routinely inflicted by officials on the members of an ethnic minority".
[22] In my opinion, the materials contained in the record clearly indicate that this conclusion is patently unreasonable. The principal Applicant's narrative clearly outlines a relationship between his political activities, and even those of his father before him, and the persecution and harassment he suffered at the hands of the police. When incidents of harassment and violence occurred, specific reference was made to the principal Applicant's political opinion and his ethnicity. In this case, these two grounds are inextricably intertwined and form the basis for the persecution. As counsel for the Applicants correctly submits, it is well-established that mixed motivation for persecution is sufficient if the motivation in part is linked to a Convention refugee ground (Cabarcas v. Canada (M.C.I.), [2002] F.C.T. 297).
[23] The CRDD presented a brief version of the facts of the Applicants' case and omitted these important elements. The incidents that the CRDD does refer to are presented as objective and isolated, when in fact the principal Applicant outlined a detailed history of how they related to his ethnicity and political activities. In my opinion, the CRDD's decision was made without regard to the material before it. Accordingly, the decision cannot stand.
ORDER
1. Accordingly, I set aside the CRDD's decision, and this matter is referred back to a different panel of the CRDD for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-772-01
STYLE OF CAUSE: VALENTIN LAZAROV SOKOLOV
KREMENA KIRILOVA SOKOLOVA
VALENTIN VALENTINOV SOKOLOV
DENNIS VALENTINOV SOKOLOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, APRIL 9, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, APRIL 10, 2002
APPEARANCES BY: Mr. Micheal Crane
For the Applicants
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister & Solicitor
166 Pearl Street
Suite 100
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020410
Docket: IMM-772-01
BETWEEN:
VALENTIN LAZAROV SOKOLOV
KREMENA KIRILOVA SOKOLOVA
VALENTIN VALENTINOV SOKOLOV
DENNIS VALENTINOV SOKOLOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER