Date: 20090115
Docket: IMM-526-08
Citation: 2009
FC 35
Montréal, Quebec,
January 15, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ISAK CHOKHELI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision of an
immigration officer (the Officer) dated December 18, 2007, dismissing the applicant’s
pre-removal risk assessment (PRRA) application.
I. Facts
[2]
The
applicant entered Canada on June 22, 2007, seeking entry on a false passport
from Israel, and under
the name of “Oleg Borenko”. The applicant subsequently stated that his name was
really Isak Chokheli and that he was a citizen of Georgia.
[3]
The
applicant was unable to be referred to the Immigration Refugee Board (IRB)
because he did not make a claim for refugee protection before a removal order
was made against him. His claim to protection is premised on a fear of being
tortured and killed by a criminal associated with Zurab Makhatadze, from whom
he borrowed $30,000 that he did not pay back.
[4]
The
applicant alleges that Makhatadze holds a high ranking position with the Rustavi police
force. Because of the threats, Mr. Chokheli did not seek state protection.
II. The PRRA Officer’s Decision
[5]
The
Officer determined that there was insufficient evidence confirming that
Makhatadze worked for the police, that this individual used his connection to
the police as a means to threaten the applicant, that the applicant failed to
seek state protection, that there is documentary evidence indicating that
police officers are investigated, and concluded that the applicant was merely
the victim of a criminal act for which he chose not to seek state protection.
III. Issues
[6]
Despite
the many issues raised by the applicant, the Court should ultimately only determine
if the PRRA Officer’s assessment of risk is unreasonable.
IV. Analysis
Standard of
Review
[7]
The
present case involves the application of law to a situation of fact only. The
appropriate standard of review here is therefore reasonableness. The question
at issue falls within the expertise of the PRRA Officer and as a result
deference is owed to him (Dunsmuir v. New Brunswick, 2008 SCC 9).
Reasonableness
of the PRRA Officer’s Findings
[8]
The
applicant contends that the PRRA Officer not only
ignored relevant evidence when reaching his decision but that he also erred in
law when he based his decision on his assessment that the applicant was not a
refugee and was not persecuted, tortured or a person in need of protection.
[9]
Moreover,
the applicant submits that the PRRA Officer ignored relevant portions of his
testimony and documentary evidence by taking into account erroneous and
irrelevant considerations and findings of facts.
[10]
Notwithstanding
the applicant’s allegation that he is in debt to someone who works for the
police, the PRRA Officer noted that there was insufficient evidence to confirm
this information. Furthermore, the PRRA Officer writes in his reasons that
despite claiming that Makhatadze holds a high ranking position in the police in
Rustavi, the applicant
had not provided any further details as to how he knows this, or what position
Makhatadze holds, and why the applicant would seek to use a police official to
borrow money.
[11]
While
the applicant feared being unable to obtain state protection and that seeking protection
would be to no avail, the PRRA Officer found that based on the documentary evidence
and the applicant’s inability to provide concrete evidence as to Makhatadze’s
involvement with the police, the applicant had not met the onus of
demonstrating that he would be unable to obtain state protection. In addition,
the PRRA Officer noted that “[e]ven if I were to accept that the applicant had
demonstrated that Makhatadze was indeed a police official or who had ties with
the police, it is still incumbent upon the applicant to demonstrate that any
attempt to seek assistance from other branches of the police would have availed
him no protection.”
[12]
Although
the applicant claims the PRRA Officer made erroneous and irrelevant
considerations and findings of facts, the PRRA Officer not only considered the
applicant’s allegation that he is at risk but he also noted that the evidence
relating to the strangers that were looking for him and the evidence of the
traumas he would have suffered remained vague and lacked a clear link with the
purported allegations.
[13]
The
Court recognizes that an extensive risk assessment should be carried out where
a PRRA applicant has not already had their claim risk assessed by the Refugee
Protection Division, (Hausleitner v. Canada (Minister of Citizenship &
Immigration), 2005 FC 641). But on the other hand, in his analysis of the
risk assessment, the PRRA Officer is entitled to consider the applicant’s
unwillingness to seek protection from the state because of his fear. The PRRA
Officer must also assess the effectiveness of a country’s efforts to provide
protection to its citizens (Hausleitner, above, at paragraph 27).
[14]
Although
the applicant insists that the PRRA Officer ignored evidence, he was unable to
show this Court where and in what way the PRRA Officer erred. On the other hand,
the Court notes that the PRRA Officer well reasoned his decision and considered
the evidence relating to the possibility of torture. Further, the PRRA Officer
conducted his own research on the country conditions but concluded not only
that there was not enough evidence demonstrating risk of persecution, but also
that state protection was available if the applicant needed and sought
protection from other police branches.
[15]
True
the applicant is not satisfied and disagrees with the PRRA Officer’s findings
in this regard. However, the PRRA Officer, as the trier of fact was entitled to
weigh the documentary evidence before concluding as he did.
[16]
Considering
the deference that this Court must exercise in deciding this case, and
recognizing that the PRRA Officer found that the facts supporting the applicant’s
claim were vague and lacked a direct link to the applicant’s allegations, this
Court has no other alternative but to conclude that its intervention is not
warranted since the PRRA Officer reasonably weighed the applicant’s fear in
relation to Georgia’s effectiveness in protecting its citizens and on the
evidence before him rendered a reasonable decision.
[17]
In
brief, the applicant failed to convince the Court that the impugned assessment
is not defensible in respect of the facts and law and therefore the application
to review the Officer’s decision will be dismissed.
[18]
The
Court agrees with the parties that there is no serious question of general
interest to certify.
JUDGMENT
FOR THE
FOREGOING REASONS THE COURT dismisses the application.
“Maurice E. Lagacé”
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