Docket: IMM-2397-11
Citation: 2011 FC 1394
Montréal, Quebec, November 30, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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DAVID BURJANADZE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant, Mr.
David Burjanadze, is a 37
year old citizen from Georgia in the City of Tbilisi.
[2]
To
support his claim, Mr. Burjanadze alleges that he is targeted by criminals
linked with the Georgian police who want to kill him because he was allegedly
an important witness to a murder perpetrated by them in January 2005.
[3]
Mr. Burjanadze allegedly
left Georgia in January 2006 for Spain.
[4]
On
July 4, 2008, Mr. Burjanadze used
a “false” Israeli passport (but according to Canada Border Services Agency
Analysis, Exhibit M-1, it is “probably authentic”, however, altered in a
“significant manner”; the passport bears the name of Vyacheslav Lvov, born in
the USSR, 02/10/1977; date of issue 27/07-2006; date of expiry 26/07/2011;
passport no. 11719795).
[5]
Mr.
Burjanadze
then flew to Canada, where he claimed refugee status.
[6]
The
Board determined that it was implausible Mr. Burjanadze could not
provide any official document establishing his residence in Georgia after 1995
(Aguebor v Canada (Minister of Employment and Immigration) (1993), 160
NR 315 (FCA); Singh v Canada (Minister of Citizenship and Immigration),
2007 FC 62 at para 21).
II. Judicial Procedure
[7]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board), rendered on May 9, 2011,
wherein, the Applicant was found to be neither a “Convention refugee” nor “a
person in need of protection” pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
III. Decision under Review
[8]
Mr. Burjanadze did not
establish that he resided in Georgia when he allegedly overheard the criminals
admitting to the killing of his friend.
[9]
Mr.
Burjanadze did not
establish that he was targeted by those criminals nor that he would be so, six
years later, if he were to return to his country.
[10]
The
Board found that Mr. Burjanadze’s allegations regarding the incident in Georgia were
fabricated and, thus, concluded that he had not established a serious
possibility of persecution on a Convention ground.
IV. Issue
[11]
Is
the Board’s decision reasonable?
[12]
The
decision of the Board is reasonable. The Court, therefore, is in accord with
the position of the Respondent.
V. Standard of Review
[13]
Findings
of credibility are factual in nature and are clearly within the purview of the
Board; therefore, the applicable standard of review is reasonableness and the
Board’s decision in this instance warrants a high degree of deference (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47, 51 and 53).
VI. Analysis
[14]
The
file record before the Court demonstrates that Mr. Burjanadze spent some
time in prison as he had allegedly been involved, unwillingly, as a mule in a
criminal operation.
[15]
The
Board found Mr.
Burjanadze
not to be credible and noted:
a. when asked
about his journey from Georgia to Spain, or from Spain
to Canada, the Applicant was vague;
b. when asked
what happened in Georgia in 2005 and 2006, the Applicant was ambiguous;
c. the Applicant
could not explain what he did in Spain for two years;
d. the Applicant
could not respond as to whether he left Spain in 2005 or 2006;
e. the Applicant
hesitated in providing dates that followed the alleged murder of an alleged
friend; and,
f.
the
Applicant contradicted himself in respect of occupation; he stated he was a
mechanic before his alleged problems, and then changing his initial declaration
to having been unemployed and supported by his mother.
[16]
The
Board was entitled to draw negative inferences concerning the quality of Mr. Burjanadze’s testimony
(Jarada v Canada (Minister of Citizenship and Immigration), 2005 FC 409
at para 18).
[17]
The
Board was entitled to request independent documents, such as bank account
statements or cellular phone bills, from 2005 or 2006, to corroborate
Mr. Burjanadze’s presence in Georgia during those years; notably, since
the documents initially presented by Mr. Burjanadze were for the period
1994 and 1995 (Sinnathamby v Canada (Minister of Citizenship and
Immigration), 2001 FCT 473 at para 24; Encinas v Canada (Minister of
Citizenship and Immigration), 2006 FC 61 at para 28).
[18]
The
Board determined that it was implausible Mr. Burjanadze could not
provide any official document establishing his residence in Georgia after 1995
(Aguebor, above; Singh, above).
[19]
In
accordance with Rule 7 of the Refugee Protection Division Rules,
SOR/2002-228, an applicant is to make the necessary efforts to provide the
Board with any available evidence supporting his/her statements and give
satisfactory explanations for any lack of evidence that could have reasonably
been expected.
[20]
It
is in the Board’s discretion to weigh the evidence before it as it sees fit (Bunema
v Canada (Minister of Citizenship and Immigration), 2007 FC 774 at para 16;
Singh, above, at para 10).
[21]
The
Board was entitled to determine that the documents submitted had no weight:
a. the original
affidavits were from acquaintances;
b. the water
bill only confirmed that the Applicant’s mother resided in Tbilisi, Georgia;
and,
c. the municipal
order confirmed only that an apartment unit belonged to the Applicant’s family.
[22]
Contrary
to his submissions, the Applicant simply disagrees with the Board’s weighing of
the evidence and this does not constitute a legal basis for this Court to
review the Board’s decision (Brar v Canada (Minister of Employment and
Immigration), [1986] FCJ No 348 (CA) (QL/Lexis)).
[23]
The
Board’s reasoning was sound as to why no weight was given to the evidence
submitted after the hearing, as explained above.
[24]
The
Board noted that the alleged criminals were connected with the authorities so
the would benefit from impunity and, moreover, the police enquiry of the murder
was closed in 2005, prior to Mr. Burjanadze’s departure
from Georgia.
[25]
Mr. Burjanadze failed to
establish that the criminals would be interested in him in 2006. The onus is on
an applicant to establish an objective basis for the prospective fear of
persecution (Sanchez v Canada (Minister of Citizenship and Immigration),
2007 FCA 99 at para 15).
[26]
Mr. Burjanadze failed to
link the general country conditions of Georgia to his personalized risk.
[27]
The
documentary evidence submitted by Mr. Burjanadze does not
establish how he would be at risk in regard to the “corruption and politically
motivated violence by the Georgian state” or the “poor human rights conditions
prevailing in Georgia”.
[28]
This
Court must refrain itself from reweighing the evidence.
VII. Conclusion
[29]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS
that
the Applicant’s application for judicial review be
dismissed. No question of general importance for certification.
“Michel M.J. Shore”
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