Docket: IMM-2692-15
Citation:
2016 FC 24
Ottawa, Ontario, January 8, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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VEPHKHVIA
TABATADZE
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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]
This is an application for judicial review by
Vephkhvia Tabatadze [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by
the Refugee Protection Division of the Immigration and Refugee Board of Canada
[RPD] dated May 4, 2015, and communicated to the Applicant on May 8, 2015. The
RPD denied the Applicant’s claim for refugee protection. This application must
be granted for the following reasons.
[2]
The Applicant is from Georgia. His claim is based
on alleged actions against him made by persons who were and remain powerfully
connected with the Georgian government. The Applicant’s family is still in
Georgia. The Applicant alleges his family is living in hiding. The RPD
dismissed the Applicant’s claim for refugee protection, saying the
determinative issues were credibility including subjective fear, delay in
leaving Georgia and applying for refugee protection in Canada, and state
protection. The Applicant mistakenly appealed the decision to the RAD which did
not hear it because this is a legacy case, and accordingly must be determined
under pre-RAD legislation. Leave to apply for judicial review was granted on
September 24, 2015.
[3]
The parties agree, as do I, that the standard of
review in this case is reasonableness. In Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, the Supreme Court of Canada explained what is required of a
court reviewing on the reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[4]
While counsel canvassed a number of issues, in
my view, the determinative issue is the RPD’s blanket rejection of all
affidavit evidence filed by the Applicant’s family and relatives. The RPD gave
this evidence “no weight”, saying: “[d]ocuments signed by his family members are self-serving
since they are from his family members who have interests in the outcome of the
claimant’s refugee claim in Canada and as a result, the panel gives no weight
to these documents.” This Court has repeatedly criticized the outright
rejection of evidence provided by relatives and family members of an applicant
or claimant because such evidence is self-serving: see Kaburia v Canada
(Citizenship and Immigration), 2002 FCT 516 at para 25; Ahmed v Canada
(Citizenship and Immigration), 2004 FC 226 at para 31; Mata Diaz v
Canada (Citizenship and Immigration), 2010 FC 319 at para 37; Magyar v
Canada (Citizenship and Immigration), 2015 FC 750 at para 44; and Cruz
Ugalde v Canada (Public Safety and Emergency Preparedness), 2011 FC 458 at
para 26, as examples. I repeat those criticisms here.
[5]
This Court stated one of the underlying reasons
why this approach is unreasonable in Varon v Canada (Citizenship and
Immigration), 2015 FC 356 at para 56:
…If evidence can be given “little
evidentiary weight” [or no weight at all in the case at bar] because a witness
has a vested interest in the outcome of a hearing then no refugee claim could
ever succeed because all claimants who give evidence on their own behalf have a
vested interest in the outcome of the hearing. …
[6]
In addition, rejection of evidence from family
and friends because it is self-serving or because the witnesses are interested
in the outcome, is an unprincipled approach to potentially probative and
relevant evidence. To allow a tribunal to reject otherwise relevant and
probative evidence in this manner creates a tool that may be used at any time
in any case against any claimant. It therefore defeats a primary task of such
decision-makers which is to assess and weigh the evidence before them.
[7]
While such an approach to the evidence may not
in every case warrant judicial review, the panel’s rejection of family-sourced
evidence in this case resulted in the panel’s rejection of evidence that directly
addressed fundamental findings by the panel, namely its conclusions concerning subjective
fear, and state protection. In other words, the rejected evidence dealt with
two or three of the three or four issues on which the RPD said its decision
rested. These issues relate to both sections 96 and 97 of the IRPA which
are central to Canada’s statutory and Convention obligations. It is not
possible for me to say what the decision would have been if the RPD had reasonably
considered and assessed this rejected evidence. Therefore, it is unsafe to
allow this RPD decision to stand, and judicial review must be granted.
[8]
In addition, I am concerned with other aspects
of the decision.
[9]
First, the decision appears to be partially
founded on a number of material and unsupported findings which themselves warrant
judicial review based on misapprehension of the evidence. As examples, the RPD
said it was not plausible the claimant met a person in March 2009, in one place
as stated in his revised Personal Information Form [PIF] narrative, since he
was somewhere else at the time. But that was not the evidence; the evidence was
not that the two met, but that there had been a call. In addition, the RPD
rejected the Applicant’s explanation for waiting for his agent to get visas for
the rest of his family, because “he knew that his agent
had failed to obtain visas for his family in the past when he travelled to the
Netherlands and Germany on three occasions.” This also misapprehended
the evidence which was that the Applicant was in fact using a different agent.
And the RPD criticized the Applicant for not seeking help from state
institutions when his business was audited perhaps wrongfully; however, in the
face of possible criminal extortion aided by Georgian tax authorities, the
Applicant, in my view reasonably, had in fact filed a complaint with the police.
[10]
Further, the RPD criticized a medical report regarding
a beating the Applicant received, on the ground that while the medical report states
“that he was beaten by the police but there is not (sic)
mention about Zaza Chaia beating him and that information was given by the
claimant to the hospital authorities.” Mr. Chaia was one of the alleged
assailants. In my view, this finding is unreasonable. This medical report is
criticized because it does not name the victim’s assailant(s). This is a questionable
basis on which to attack a medical report. This is so because when a medical
report fails to identify an assailant (as here) it is criticized for
incompleteness or inconsistency with the claimant’s narrative. But where a
medical report does identify the causes of harm to the claimant, it is subject
to attack as based on hearsay despite it being both complete and consistent. The
Supreme Court of Canada criticized this latter attack in Kanthasamy v Canada
(Citizenship and Immigration), 2015 SCC 61 [Kathansamy], concerning a health care professional’s report that
identified a source of harm to the claimant. At para 49, the majority said: “[o]nly rarely will a mental health professional personally
witness the events for which a patient seeks professional assistance. To
suggest that applicants for relief […] may only file expert reports from
professionals who have witnessed the facts or events underlying their findings,
is unrealistic and results in the absence of significant evidence.” Reports
of health care professionals are of most value to the extent they contain health
care-related evidence; they should not be rejected because they fail to name a
claimant’s assailant(s). In my view, this finding was unreasonable.
[11]
I am unable to leave this decision without
commenting on one additional component of the RPD’s decision. Concerning the
critical issue of state protection, the RPD stated: “[The
Applicant] would have obtained justice if he was wrongfully charged for
something he did not commit.” I was pointed to no evidence that
supported this glowing plausibility finding concerning Georgia’s criminal justice
system. In my view, it is neither evidence-based nor grounded in rationality
and/or common sense; therefore it cannot stand.
[12]
I appreciate that judicial review requires
looking at the decision as an organic whole. Judicial review is not a piecemeal
analysis. It is not correctness review. It is not a treasure hunt for errors.
The reviewing court must stand back at the end of the day and determine if the
decision as a whole falls within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law as set out in Dunsmuir.
In my view, for the reasons outlined above, this decision does not fall within
that range. Therefore, it must be set aside and remitted for re-determination.
[13]
Neither party proposed a question to certify,
and none arises.
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