Docket:
IMM-2853-14
Citation: 2015 FC 7
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 5, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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IRMA KURKHULISHVILI
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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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JUDGMENT AND REASONS
[1]
The applicant is challenging the lawfulness of a
decision by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board, dated March 19, 2014, in which the RPD found that the applicant
was neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, CC
2001, c 27.
[2]
The applicant is a citizen of Georgia who left
her country for Canada in May 2012. She is claiming refugee status on the basis
of threats she alleges having received from her former employer. In February
2008, the applicant – who is also a lawyer – began working as a police captain
in the fraud and crime department of the Ministry of Internal Affairs in Tbilisi,
a position she retained until November 18, 2011. She claims that her superiors
asked her to fabricate evidence in order to proceed with the arrest of members
of the opposition political party, which the applicant refused to do. During
this period, the applicant and her family were purportedly threatened with arrest
and the applicant was harassed by colleagues and superiors, in addition to
being threatened with rape by the chief of police. After having left her
employment, the applicant opened a law office whose clients had been victims of
police harassment. She was subsequently followed and received threats advising
her not to speak to members of the opposition. In January 2012, the applicant
went on a trip to England for a week, and then returned to Georgia. She left
her country once again in May 2012 to come to Canada, where she claimed refugee
status.
[3]
The claim was rejected. In essence, the RPD determined
that the applicant was not credible and did not have a subjective fear of persecution.
She was unable to explain in a satisfactory manner why she had returned to
Georgia following her trip to England, and there were several contradictions in
her narrative, in particular regarding the circumstances surrounding the end of
her employment with the police as well as those surrounding her leaving the
country. Furthermore, the RPD also found that the applicant had an internal
flight alternative [IFA] available to her in Kutaisi and in Zugdidi.
[4]
The applicant challenges the reasonableness of
various findings of fact made by the RPD. It is well established in the case
law that this Court must afford considerable deference to the RPD’s findings on
issues of credibility and assessment of the evidence; the same applies to the
internal flight alternative [IFA], which is essentially a question of fact: Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paras 35-38
[Mugesera]; Trevino Zavala v Canada (Citizenship and Immigration),
2009 FC 370 at para 5; Hernandez Cortes v Canada (Citizenship and Immigration),
2009 FC 583 at para 28. In this case, the RPD’s decision appears reasonable to
me, with the result that the application for judicial review must fail.
[5]
The applicant basically criticizes the RPD for
having erred by failing to distinguish between the period prior to November 18,
2011 – when she was working for the police – and the period after November 18,
2011 – when she worked in her own private law practice. When the applicant
explained that she returned to Georgia after having travelled to England
because she had only been threatened once, on December 20, 2011, she was
referring to threats having been made after she had started working as a lawyer
and that she was therefore not contradicting herself. According to the
applicant, it was an isolated incident and thus could not constitute
persecution; therefore the RPD could not criticize the applicant for not having
fled after this isolated incident. Furthermore, even though the applicant’s
workbook indicates that it was she who resigned, and even if the applicant
indicated in her Personal Information Form [PIF] that she had left her
position, the RPD should have accepted the applicant’s explanation that she had
effectively been dismissed, or at least forced to resign from her position to
prevent her from being able to sue her former employer.
[6]
However, for the respondent the applicant’s
testimony was peppered with contradictions and implausibilities. It was also
clear that her behaviour was not that of someone who truly feared for their
life. Thus, she testified at the hearing that she had feared for her life since
December 20, 2011, which contradicts her previous statement to the effect that
she had feared the police since January 2011. Nevertheless, the applicant’s
failure to seek asylum in England in January 2012, when she had just been
threatened by the police on December 20, 2011, seriously undermines her subjective
fear. Furthermore, the evidence in the record contradicts the applicant’s
testimony regarding the circumstances surrounding the termination of her
employment relationship with the police. Lastly, it is implausible that the
applicant would have been able to leave the airport if she was truly sought by
or under threat from powerful individuals within the Georgian police. In light
of all these elements, it was reasonable for the RPD to conclude that the
applicant was not credible. Accordingly, there is no need to examine the RPD’s
finding with respect to the IFA in a city located 200 kilometres from the
capital where the applicant worked.
[7]
In the present case, the lack of credibility
seems determinative to me. I agree with the respondent that it was reasonable
for the RPD to find the applicant not to be credible. Even though it is
conceivable that another decision-maker may have arrived at a different
conclusion, the fact remains that there are significant contradictions and
inconsistencies in the applicant’s testimony. In this case, the RPD based its
reasoning on the available evidence and there is no glaring inconsistency
between the RPD’s decision and the evidence in the record (Rahal v Canada
(Citizenship and Immigration), 2012 FC 319 at para 60). Initially, the
applicant stated that the incident of December 20, 2011, should be considered
as an isolated incident, yet she also cited the threats she allegedly received
on November 18, 2011, in support of her claim for refugee protection. It
strikes me as reasonable to find that the applicant’s return to Georgia
following her trip to England in January 2012 significantly undermined her credibility.
Furthermore, if we accept that the police are powerful enough to be able to
fabricate evidence so as to arrest innocent people, there was nothing
preventing the police from arresting the applicant at the airport on trumped up
charges.
[8]
At the risk of repeating myself, it is not my
role to reassess all of the evidence in order to arrive at a different finding
of fact. This is not an appeal; it is a judicial review. Accordingly, great
deference is owed to findings of fact made by the RPD, which is a specialized
tribunal (Aguebor v Canada (Minister of Employment and Immigration), 160
NR 315, [1993] FCJ No 732 (FCA) at para 4; Mugesera, above at paras 35-38;
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 61
and 64; Canada (Attorney General) v Almon Equipment Limited, 2010 FCA
193 at para 62; Nimer Obeid v Canada (Citizenship and Immigration), 2008
FC 503 at paras 9-11). Given that the RPD’s lack of credibility finding is in
itself sufficient to dispose of the refugee claim, there is therefore no need
to examine the reasonableness of the RPD’s IFA finding.
[9]
The application for judicial review will be
dismissed. No question of general importance has been proposed by counsel and
none shall be certified by the Court.
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