Docket: IMM-2546-16
Citation:
2017 FC 100
Ottawa, Ontario, January 26, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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SIMONI GIORGANASHVILI
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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, Mr. Simoni Giorganashvili, seeks judicial review of
a decision rejecting his application for a Pre-Removal Risk Assessment [PRRA], made
by a Senior Immigration Officer [PRRA Officer] on April 13, 2016. The PRRA
Officer determined that the Applicant had failed to establish that he would be
at risk of persecution or torture, risk to life, or risk of cruel and unusual
treatment or punishment if he returned to Georgia, his country of origin. The
PRRA Officer also found that the Applicant had failed to rebut the presumption
of state protection.
[2]
For the reasons that follow, the application for
judicial review is allowed.
I.
Background
[3]
The Applicant came to Canada from the United
States on December 18, 2008 and sought refugee protection on January 13, 2009. In
November 2010, the Refugee Protection Division [RPD] rejected his claim on the basis
that a viable and accessible internal flight alternative was available to the Applicant
in Georgia. The Applicant did not seek judicial review of the RPD's decision.
[4]
In February 2016, the Applicant submitted a PRRA
application, alleging that while he lived in Georgia, he was subjected to
threats and physical harm at the hands of a powerful and influential man, who
accused the Applicant of stealing a large sum of money from him. The Applicant alleges
that since the refusal of his refugee claim, the individual has continued to
inflict harm on the Applicant’s family members and is responsible for his
father’s death in October 2015. This individual is now employed by the Ministry
of Internal Affairs [MIA] of Georgia as head of the Investigation Division for
a specific region of Georgia.
[5]
In support of his PRRA application, the
Applicant submitted a number of documents, including letters from the MIA, his
father's health and death certificates, and notarized statements from two (2)
neighbours and the Applicant’s mother providing eyewitness accounts of the
events that led to the death of the Applicant's father.
[6]
The PRRA Officer rejected the Applicant’s PRRA
application on April 13, 2016.
II.
The PRRA decision
[7]
The PRRA Officer began by setting out the Applicant’s
background information and new evidence and provided an overview of the RPD’s
decision. The PRRA Officer then proceeded to review country conditions in
Georgia, noting that there are procedures in place for reporting a crime to the
authorities and seeking additional assistance from other organizations that
oversee the activities and actions of the state police and the MIA.
[8]
Under the heading “Analysis
and Findings”, the PRRA Officer then considered the Applicant’s
documents. The PRRA Officer first noted that several of the Applicant’s
documents, including the original health certificate of the Applicant’s father,
had identical markings on the right side of the page. The PRRA Officer questioned why an original
official document would have the same markings as the other documents produced
by the translator and notary public. He also questioned why the health certificate
would name the alleged perpetrator responsible for shooting the Applicant’s
father and how the physician who signed the certificate would have been
apprised of this information. The PRRA Officer also noted that the alleged
perpetrator had not been identified as the individual responsible for the death
of the Applicant’s father on his death certificate or in the letter that the
Applicant’s mother received from the MIA, informing her that the homicide
investigation into her husband’s death had been dismissed. As a result, the PRRA
Officer gave the health certificate low probative weight as objective evidence
to prove that the individual feared by the Applicant was responsible for his father’s
death and that the Applicant would face a forward-looking risk upon his return
to Georgia.
[9]
The PRRA Officer then proceeded to state that he
accepted that the individual feared by the Applicant was now working as the
head of the Investigation Division of the MIA in a specific region of Georgia, that
a homicide investigation into the death of the Applicant’s father was dismissed
for insufficient evidence and that the Applicant’s father died on October 21,
2015 in Georgia. The PRRA Officer noted, however, that no official police
report detailing the death of the Applicant’s father had been adduced as
corroborating evidence.
[10]
The PRRA Officer also considered the three (3)
notarized eyewitness accounts of the death of the Applicant’s father and noted that
the eyewitnesses were two (2) neighbours and the Applicant’s mother. He further
noted that all three (3) eyewitness accounts stated that two (2) individuals,
one of whom was identified as the individual feared by the Applicant,
approached the home of the Applicant’s father and physically assaulted him
after he opened the door. All three (3) witnesses identified the individual feared
by the Applicant as the person who shot the Applicant’s father after the
physical beating. The PRRA Officer assigned the witness accounts little
probative value because the witnesses all knew the Applicant’s father and had a
vested interest in the matter, which detracted from their objectivity.
[11]
After considering the Applicant’s documents, the
PRRA Officer found that he was unable to conclude that the individual feared by
the Applicant was still interested in harming him, or that he was responsible
for the death of the Applicant's father.
[12]
On the issue of state protection, the PRRA Officer
noted that the Applicant had approached the authorities when he was living in
Georgia but that the police tore up his complaint. The PRRA Officer found that
the Applicant had failed to rebut the presumption of state protection because
he had not approached organizations such as the General Inspection Department, the
Prosecutor General, or the Public Defender’s Office, considered to be
effective, to seek additional assistance. The PRRA Officer found that the
Applicant had adduced little objective and corroborative evidence to show that
protection from these organizations was ineffective.
III.
Analysis
[13]
The Applicant submits that the PRRA Officer’s
assessment of the Applicant’s risk is unreasonable and that he erred in his
analysis of state protection. The Applicant contends that the PRRA Officer
erred in assigning little probative weight to the notarized eyewitness statements
from his mother and her neighbours simply because they had a vested interest in
the matter. The Applicant also argues that in conducting both his assessment of
risk and state protection analysis, the PRRA Officer failed to consider that
the primary agent of persecution is now employed with the MIA in Georgia.
[14]
The Respondent submits that the PRRA Officer’s
findings were reasonable. The PRRA Officer conducted a thorough and proper
analysis of the Applicant’s PRRA submissions and supporting documents. The
Respondent argues that the PRRA Officer reasonably concluded that the three (3)
notarized eyewitness statements could have been independently corroborated from
police sources or the MIA, but instead the independent sources were silent on
the identity of the person allegedly responsible for the death of the Applicant’s
father.
[15]
The determinative issue in this application for
judicial review is the PRRA Officer’s assessment of the evidence.
[16]
The standard of review for a PRRA Officer’s
assessment of the evidence is reasonableness (Kulanayagam v Canada
(Citizenship and Immigration), 2015 FC 101 at para 21; Vijayaratnam v
Canada (Citizenship and Immigration), 2015 FC 48 at para 24).
[17]
When reviewing a decision on the standard of reasonableness, the Court must consider whether the decision “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
Deference is owed to the decision-maker. While there might be more than one
reasonable outcome, “as long as
the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59).
[18]
In my view,
the PRRA Officer’s decision to assign little probative value to the three (3)
notarized eyewitness statements from the Applicant’s mother and her two (2)
neighbours was unreasonable. The PRRA Officer discounted this evidence on the
sole basis that the witnesses knew the Applicant’s father and had “a vested interest in the matter”.
[19]
This Court has repeatedly stated that rejecting
evidence on the sole basis that it emanates from family members or individuals
connected to an applicant is an error (Tabatadze v Canada (Citizenship and
Immigration), 2016 FC 24 at paras 4-6; Murillo Taborda v Canada
(Citizenship and Immigration), 2013 FC 957 at paras 26, 29; Cruz Ugalde v Canada (Public
Safety and Emergency Preparedness), 2011 FC 458 at paras 25-28).
[20]
While I
recognize that significant deference is owed to a
decision-maker in the assessment of evidence and the determination of its
probative value, the PRRA Officer in this case provided no other reason for
assigning low probative value to the three (3) notarized eyewitness statements.
[21]
Moreover, I am concerned that the decision to
discount the notarized eyewitness statements may have impacted the PRRA
Officer’s assessment of risk. In his reasons, the PRRA Officer noted that a homicide
investigation into the death of the Applicant’s father appeared to have been
dismissed due to the insufficiency of evidence. He further noted that the
Applicant had not adduced a police report detailing the death of the
Applicant’s father as corroborative evidence. After stating that he gave
little probative value to the notarized eyewitness statements because of the
witnesses’ vested interest in the matter, the PRRA Officer found that he was unable to conclude, given the evidence before him, that the
individual feared by the Applicant was still interested in harming him or that
the individual was responsible for the death of the Applicant’s father. If the
PRRA Officer had properly considered and assessed the notarized eyewitness statements, his
conclusion might have been different as the three (3)
statements identified the individual feared by the Applicant as the person allegedly
responsible for the death of the Applicant’s father.
[22]
It is possible that the PRRA Officer would have
come to the same conclusion regarding the probative value of the statements. However,
in the absence of any analysis of the statements by the PRRA Officer, the Court
cannot presume that the outcome would have been the same.
[23]
I am also concerned that the PRRA Officer’s
failure to properly assess the probative value of the three (3) notarized
eyewitness statements could have impacted the PRRA Officer’s assessment of
state protection, as his analysis focused on the Applicant’s experiences while
living in Georgia. The analysis does not address the issue of state protection
in the context of the alleged perpetrator now being an agent of the state.
[24]
I note that the
PRRA Officer included excerpts in his decision from the USDOS Country
Reports on Human Rights Practices for 2014 – Georgia, which inform of the existence
of external bodies that oversee the MIA. However, this information is found in
the section preceding the PRRA Officer’s analysis and findings. The PRRA
Officer’s analysis does not address the issue of state protection in the
context of the Applicant’s current allegations, notably that: 1) the individual he fears continues to inflict harm on his family
members and is allegedly responsible for his father’s death in October 2015; 2)
the individual is now employed in a senior position in the MIA as head of the
Investigation Division for a specific region of Georgia; and 3) the
investigation into the death of the Applicant’s father was dismissed for
insufficiency of evidence.
[25]
I
acknowledge that judicial review requires the Court to look at the decision as
a whole (Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at
para 3; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paras 14, 16; Dunsmuir at para 47)
and that deference is owed to the PRRA Officer’s decision. I also acknowledge
that deference requires the Court to consider the reasons that could have been
offered in support of a decision (Dunsmuir at para 48). However, even if
read as a whole, it is not possible for me to supplement the reasons as I do not
know what the decision would have been had the PRRA Officer reasonably
considered and assessed the three (3) notarized eyewitness statements.
[26]
As such, the
decision is unreasonable and cannot be allowed to stand as it does not “fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”, as set out in Dunsmuir. Accordingly, the application
for judicial review is allowed, the decision is set aside and the matter shall
be remitted back to a different PRRA Officer for redetermination.
[27]
Neither
party proposed a question to certify nor does one arise.
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