Date: 20100610
Docket: IMM-4296-09
Citation: 2010 FC 630
Ottawa, Ontario, June 10, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
TSIURI
MCHEDLISHVILI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee
Board (the RPD) dated July 29, 2009 concluding that the applicant
is not a Convention refugee or a person in need of protection pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA),
S.C. 2001, c. 27 because the applicant has an internal flight alternative (IFA)
in Georgia.
FACTS
Background
[2]
The
forty-seven (47) year old applicant is a citizen of Georgia. She will be
forty-eight (48) on June 25th. She arrived in Canada on December
29, 2006 and made a claim for refugee protection on January 25, 2007.
[3]
The
applicant has 13 years of education including nursing, but has spent the last
25 years working on her family farm in the small village of Dumatsko, Georgia. On
May 5, 1995, the applicant, then 33, married Mr. Jurabi Aptsiauri through an
arranged marriage. She lived with her husband’s family in Dumatsko. According
to the applicant, her husband was an alcoholic, and was verbally and physically
abusive. The situation worsened when she could not get pregnant. In 1998, the applicant became pregnant and
her husband accused her of adultery. The applicant suffered a severe beating
which resulted in the still birth of her child, although she attributed her
injuries at the time, out of shame, to having fallen. The applicant left her
husband on more then one occasion but ultimately returned as a result of pressure
by her mother-in-law.
[4]
The
applicant was attacked by her husband again in August 2006 and on November 21,
2006. Police were called on both occasion but resulted in no arrests. The
applicant left her home but was forced to return by her mother-in-law. The applicant
then decided to leave Georgia through an agent who
supplied her with a false passport.
Decision under review
[5]
The
applicant’s refugee claim was dismissed by the RPD on July 29, 2009 because she
did not have a well-founded fear of persecution in Georgia since she had a
viable IFA in the capital city, Tbilisi.
[6]
The
Board set out the two-part test for an IFA and held that the applicant had not
proven that there was a serious possibility that she would be persecuted in the
proposed IFA:
a) The applicant provided
insufficient information as to how her husband would locate her in Tbilisi and the resources at his
disposal;
b) There is no evidence that
government officials in Georgia investigated the applicant’s
whereabouts, or informed her husband of her location;
c) The law in Georgia allows for freedom of
movement in the country, foreign travel, emigration, and repatriation;
d) There is insufficient evidence
that the claimant could not seek protection from authorities in Tbilisi;
e) The applicant provided insufficient
evidence that police or state apparatus in Dumatsko failed to offer her
protection;
f)
There is
documentary evidence that laws in Georgia
allow victims to file for immediate protective orders, and for the police to
issue temporary restrictive orders. According to the RPD, the applicant did not
seek a restrictive order against her husband for the years of alleged abuse;
g) The Board acknowledged that
domestic abuse and other violence against women are problems in Georgia. However, the applicant
provided insufficient evidence that she could not obtain adequate state
protection in Tbilisi; and
h) The Board recognized that
culturally speaking, it may not be acceptable for women to contact police about
domestic abuse. Yet according to country documentation, police responded to
2500 cases of family conflicts in 2008, and issued 141 restrictive orders
against abusive husbands.
[7]
On
the reasonableness of the IFA, the RPD held that the applicant’s hardships
would be related to dislocation and relocation. The applicant has not shown
that she would not receive medical attention, employment or education
opportunities in Tbilisi. She has 13 years of education and graduated
from a nursing program. While the applicant has not been employed in the nursing
field, she could work as a nurse in Tsibili without her husband restricting her,
as he had when she lived with him.
LEGISLATION
[8]
Section
96 of IRPA grants protection to Convention refugees:
|
96. A
Convention refugee is a
person who, by
reason of a
well-founded fear of
persecution for
reasons of race,
religion,
nationality,
membership in a
particular
social group or
political
opinion,
(a) is
outside each of their
countries of
nationality and is
unable or, by reason
of that
fear, unwilling to
avail
themself of the
protection of
each of those
countries; or
(b) not
having a country of
nationality, is
outside the
country of their
former habitual residence and is unable or, by reason of that fear, unwilling
to return to that country.
|
96. A qualité de
réfugié au
sens de la Convention
— le
réfugié — la
personne qui,
craignant avec
raison d’être
persécutée du fait
de sa race,
de sa religion, de
sa
nationalité, de son
appartenance à un
groupe
social ou de ses
opinions
politiques :
a) soit se
trouve hors de tout
pays dont elle a la
nationalité
et ne peut ou, du
fait de cette
crainte, ne veut se
réclamer de
la protection de
chacun de ces
pays;
b) soit, si
elle n’a pas de
nationalité et se
trouve hors du
pays dans lequel
elle avait sa
résidence
habituelle, ne peut
ni, du fait de cette
crainte, ne
veut y retourner.
|
[9]
Section
97 of IRPA grants to protection to certain categories of persons:
|
97. (1) A person in
need of
protection is a
person in
Canada whose
removal to their
country or countries
of
nationality or, if
they do not
have a country of nationality,
their country of
former
habitual residence,
would
subject them
personally
(a) to a
danger, believed on
substantial grounds
to exist, of
torture within the
meaning
of Article 1 of the
Convention
Against Torture; or
(b) to a risk
to their life or to a
risk of cruel and
unusual
treatment or
punishment if
(i) the person is
unable or,
because of that
risk, unwilling
to avail themself of
the
protection of that
country,
(ii) the risk would
be faced by
the person in every
part of that
country and is not
faced
generally by other
individuals
in or from that
country,
(iii) the risk is
not inherent or
incidental to lawful
sanctions,
unless imposed in
disregard
of accepted
international
standards, and
(iv) the risk is not
caused by
the inability of that
country to
provide adequate
health or
medical care.
|
97. (1) A qualité de
personne à
protéger la personne
qui se
trouve au Canada et
serait
personnellement, par
son
renvoi vers tout
pays dont elle
a la nationalité ou, si elle n’a
pas de nationalité,
dans lequel
elle avait sa
résidence
habituelle, exposée
:
a) soit au
risque, s’il y a des
motifs sérieux de le
croire,
d’être soumise à la
torture au
sens de l’article
premier de la
Convention contre la
torture;
b) soit à une
menace à sa vie
ou au risque de
traitements ou
peines cruels et
inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la
protection de ce
pays,
(ii) elle y est
exposée en tout
lieu de ce pays
alors que
d’autres personnes
originaires
de ce pays ou qui
s’y trouvent
ne le sont
généralement pas,
(iii) la menace ou
le risque ne
résulte pas de
sanctions
légitimes — sauf
celles
infligées au mépris
des normes
internationales — et
inhérents
à celles-ci ou
occasionnés par
elles,
(iv) la menace ou le
risque ne
résulte pas de
l’incapacité du
pays de fournir des
soins
médicaux ou de santé
adéquats.
|
ISSUES
[10]
The
applicant raises the following issues:
a.
Did the
Board err in determining that there is a viable IFA in Tbilisi?
b.
Did the
Board err in its analysis of state protection and its lack of analysis of s. 97
of IRPA?
STANDARD OF REVIEW
[11]
In Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R.
1, the Supreme Court of Canada held at paragraph 62 that the first step in conducting a
standard of review analysis is to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of (deference) to be
accorded with regard to a particular category of question”: see also Khosa
v. Canada (MCI),
2009 SCC 12, per Justice Binnie at para. 53.
[12]
Questions
of credibility, state protection and IFA concern determinations of fact and mixed
fact and law. It is clear that as a result of Dunsmuir and Khosa
that such issues are to be reviewed on a standard of reasonableness. Recent
case law has reaffirmed that the standard of review for determining whether the
applicant has a valid IFA is reasonableness: Mejia v. Canada (MCI), 2009
FC 354, per Justice Russell at para. 29; Syvyryn v. Canada (MCI), 2009 FC
1027, 84 Imm. L.R. (3d) 316, per Justice Snider at para. 3; and my decision in Perea
v. Canada (MCI), 2009 FC 1173 at para. 23.
[13]
In reviewing the
Board's decision using a standard of reasonableness, the Court will consider
"the existence of justification, transparency and intelligibility within
the decision-making process" and "whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at
paragraph 47; Khosa, supra, at para. 59.
ANALYSIS
Issue No. 1: Did the Board err in
determining that there is a viable IFA in Tbilisi?
[14]
The
applicant submits that the RPD erred in finding that there was no serious
possibility of persecution in the IFA. The applicant submits that her husband
could trace her anywhere in Georgia through the government
registration system. In the event that she is found, the applicant submits that
the evidence indicates that the government treats domestic abuse lightly and would
offer her no state protection. Lastly, the IFA chosen by the RPD is not viable
because it is unreasonable to expect a “farmer” to find farm work in the city.
[15]
The
Court takes judicial notice, with permission of the parties that:
a. Georgia has a
population of 4,600,825 persons; and
b. Its capital Tbilisi has a
population of about 1,480,000 persons.
The Court finds that Tbilisi is a large
city, and it was reasonably open to the Board to find that a person could have
an IFA from a spouse.
[16]
In Farias v. Canada (MCI), 2008 FC
1035, I set out at paragraph 34 a checklist summarizing the legal criteria for
determining whether an IFA exists. The checklist is as
follows:
1. If IFA will be an issue, the Refugee
Board must give notice to the refugee claimant prior to the hearing (Rasaratnam,
[1991] F.C.J. No. 1256,
supra, per Mr. Justice Mahoney at paragraph 9, Thirunavukkarasu, [1993] F.C.J. No. 1172)
and identify a specific IFA
location(s) within the refugee claimant's country of origin (Rabbani v.
Canada (MCI), [1997] 125 F.T.R. 141
(F.C.), supra at para. 16, Camargo v. Canada (Minister of Citizenship and
Immigration) 2006 FC 472, 147 A.C.W.S. (3d) 1047
at paras. 9-10);
2. There
is a disjunctive two-step test for determining that there is not an IFA. See, e.g., Rasaratnam,
supra; Thirunavukkarasu, supra; Urgel, [2004] F.C.J. No. 2171,
supra at para. 17.
i. Either
the Board must be persuaded by the refugee claimant on a balance of
probabilities that there is a serious possibility that the refugee claimant
will be persecuted in the location(s) proposed as an IFA by the Refugee Board; or
ii. The
circumstances of the refugee claimant make the proposed IFA location unreasonable for the claimant to seek refuge
there;
3. The
applicant bears the burden of proof in demonstrating that an IFA either does not exist or is unreasonable in the
circumstances. See Mwaura v. Canada (Minister of Citizenship and
Immigration) 2008 FC 748 per Madame
Justice Tremblay-Lamer at para 13; Kumar v. Canada (Minister of Citizenship
and Immigration) 130 A.C.W.S. (3d) 1010,
2004 FC 601 per Mr.
Justice Mosley at para. 17;
4. The
threshold is high for what makes an IFA
unreasonable in the circumstances of the refugee claimant: see Khokhar v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449, per Mr.
Justice Russell at paragraph 41. In Mwaura, supra, at para.16, and Thirunavukkarasu,
supra, at para. 12, whether an IFA
is unreasonable is a flexible test taking into account the particular situation
of the claimant. It is an objective test;
5. The IFA must be realistically accessible
to the claimant, i.e. the claimant is not expected to risk physical danger or
undue hardship in traveling or staying in that IFA. Claimants are not compelled to hide out in an
isolated region like a cave or a desert or a jungle. See: Thirunavukkarasu,
supra at para. 14; and
6. The
fact that the refugee claimant has no friends or relatives in the proposed IFA does not make the proposed IFA unreasonable. The refugee
claimant probably does not have any friends or relatives in Canada. The fact that the
refugee claimant may not be able to find suitable employment in his or her
field of expertise may or may not make the IFA unreasonable. The same may be true in Canada.
[17]
I am
of the opinion that the RPD’s findings are reasonable with respect to the
adequacy of the IFA. The jurisprudence establishes a high
threshold which the applicant must satisfy on the balance of probabilities to
prove that an IFA is not reasonably
available. To paraphrase the jurisprudence, it requires the existence of
conditions which would jeopardize the life and safety of a claimant in
traveling or temporarily locating in a safe area. At the hearing, the RPD
Member, on numerous occasions, asked how the applicant’s husband would be able
to locate her. The applicant responded at line 15 of the transcript:
Because if I go to Tbilisi, I need to pay rent and to
sustain myself and I need resources for this. Sooner or later, Georgia is a small country and my
husband will find out. I even – I’m almost sure that my husband would ask in
the airport or other border services that if I show up somewhere to let him
know, because this is very shameful for him, what I did, and he will never let
this situation go, go away like this.
[18]
The applicant’s counsel at the hearing submitted
that the applicant must register herself with authorities in Tbilisi in order to
work:
[…] because he is her husband, could very
easily simply go to the registration office and tell him that he was looking
for his wife and they would give him the information as to where she was now
registered. Therefore, it would be very easy for him to track her, no matter
where she is in Georgia, but certainly even if she
went to Tbilisi.
[19]
The
applicant provided no evidence to substantiate her fear of tracing, or explain
how or why her husband would be interested in pursuing her several years after
her departure. It was reasonably open to the RPD to assign little weight to the
applicant’s testimony in this regard. Moreover, Tbilisi is 3 hours
away from the applicant’s hometown and is a large city of 1.4 million people.
[20]
The
applicant submits that the RPD ignored a number of pieces of documentary
evidence with respect to state protection. The RPD may not have mentioned every
document on the record but it did rely on the on the United States Department
of State 2008 Report (DOS Report) on Human Rights in Georgia which stated that Georgia
was taking steps to ameliorate the problem of domestic abuse. There is no basis
upon which the Court can determine that the RPD reached its decision without
regard to the evidence: see Cepeda-Gutierrez v. Canada (1998), 157
F.T.R. 35, at para. 16.
[21]
The
DOS Report states that 2,576 cases of domestic abuse were reported to the
police in 2008, and restrictive orders were issued in 141 cases, and that the
police in Tbilisi are trained for dealing
with domestic abuse and issuing restrictive orders.
[22]
Accordingly,
the Court finds that the RPD conclusion that Tsibili was a viable IFA for the
applicant was reasonably open to the RPD on the evidence before it.
Issue No. 2: Did the Board err in its
analysis of state protection and its lack of analysis of s. 97 of IRPA?
[23]
In
light of the Court’s conclusions with respect to IFA, it is unnecessary to
consider the question of state protection.
CERTIFIED QUESTION
[24]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
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