Date: 20050928
Docket: IMM-10626-04
Citation: 2005 FC 1285
BETWEEN:
Rusudan MIKIANI
Khatia OSASHVILI
Levani OSASHVILI
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated December 6, 2004, wherein the Board found the applicants not to be Convention refugees or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Rusudan Mikiani (the principal applicant), her daughter, Khatia Osashvili and her son, Levani Osashvili, are citizens of Georgia who claim a well-founded fear of persecution because of the applicant's dual ethnicity. Her father was Georgian and her mother was Abkhaz. The applicant alleges that she was also persecuted because of her political opinions. She is a member of the Round Table-Free Georgia Party. The applicant's children's claim is based on their mother's.
[3] The Board based its decision on a negative credibility finding. In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it. Furthermore, the Board's decision will only be disturbed if it is sufficiently unreasonable to attract this Court's intervention. It is well established that the Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[4] The applicant argues that a birth certificate is a valid identity document and the Board implicitly rejected it as an essential document proving the applicant's ethnicity as being half Abkhazian and half Georgian. The applicant submits that it is arbitrary and confusing that the Board used this same document to state that the applicant's "identity is not an issue in this case".
[5] I agree with the respondent's submission that the Board did not reject the birth certificate because it could not be used to identify the claimant. What the Board held was that since a birth certificate, unlike a passport or identity card, is not a document that serves for identification purposes, the claimant cannot allege that her Abkhazian ethnicity was notorious. In addition, the Board noted that on those other documents used for identification purposes, it is her Georgian ethnicity that is mentioned, not her Abkhazian ethnicity. The respondent submits that the Board did not make any error of fact in concluding that since the only document that showed the claimant's Abkhazian ethnicity was her birth certificate, a document not used for identification purposes, the claimant was not credible in her claim that she was persecuted because of her Abkhazian ethnicity.
[6] The applicant further submits that the Board erred in stating that a person's name, appearance and accent are not relevant factors linked to one's ethnicity.
[7] I do not find that the Board made an erroneous finding when it rejected the allegation that the claimant was persecuted on the basis of her ethnicity as shown by her name, appearance and accent. The applicant did not provide any explanation as to how it is that Georgians of Abkhazian ethnicity, which is only partial as far as the applicant is concerned, are easily identified on the basis of their appearance and accent. The Board noted that contrary to the applicant's allegation, her last name is of Georgian, not Abkhazian origin, since the claimant's father was Georgian.
[8] As for the rest, upon reviewing the evidence, I am satisfied, except for a minor and non determinative error concerning the return the applicants did not make to Georgia before coming to Canada, that the Board did not base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7).
[9] I am also satisfied that the Board's conclusions regarding the present country conditions in Georgia are based on the most recent documentary evidence. As to the allegation that the claimant's dual ethnicity entails that she cannot live free of persecution in both Georgia and Abhkazia, this allegation is not supported by the evidence as a whole.
[10] Finally, as to the applicant's allegation that the tribunal failed in its duty to assess the children's risks of persecution, I find it is ill-founded. In that regard, the Board stated the following, in its decision:
Both children were also questioned as to the cause of their problems. Both answered that they were persecuted because of their mother's Abkhaz ethnicity.
As the panel does not believe their mother was persecuted for this reason, it ensues that it does not believe the children were persecuted because of their mother's Abkhaz ethnicity. Furthermore, their name "OSASHVILI" would certainly not lead people to assume they were partly Abkhaz.
[11] It appears therefrom that the Board questioned the children as to the origin of the problems they suffered in their country of origin. I have reviewed the children's testimonies at pages 513 and 514 of the Tribunal Record, and it is clear that they basically answered that the origin of their problems was linked to their mother's ethnicity. Given the particular circumstances of this particular case, I am satisfied that the Board properly assessed the children's risks of persecution.
[12] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 28, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10626-04
STYLE OF CAUSE: Rusudan MIKIANI, Khatia OSASHVILI, Levani OSASHVILI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 24, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: September 28, 2005
APPEARANCES:
Me Viken Artinia FOR THE APPLICANTS
Me Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joseph W. Allen FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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