Date: 20120523
Docket: IMM-7861-11
Citation: 2012 FC 627
Toronto, Ontario, May 23, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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LEVANI KUTALADZE
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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]
It
is trite law that the trier of fact is best placed to assess all the evidence
submitted. This assessment should take into account the context of the case.
The trier of fact must be alert to the circumstances of the claim before it in
order to determine the proper legal perspective and approach to be adopted to
properly comprehend the crux of the claim. Therefore, the documentary evidence
reflecting the country’s conditions should be analyzed harmoniously with the
subjective fear that emerges from the claimant’s situation.
II. Judicial Procedure
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision made
by the Refugee Protection Division of the Immigration and Refugee Board
[Board], rendered on October 6, 2011, wherein it was determined that the Applicant
was not a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of the IRPA.
III. Background
[3]
The
Applicant, Mr. Levani Kutaladze, is a citizen of Georgia and was a
resident of the district of Sachakheri.
[4]
The
Applicant owned a timber business in South Ossetia in the Java district. In
August 2008, after the civil war, the Java district was taken by the Russian
army. As a result, the Applicant could no longer return to his place of
business; however, all of his business’ equipment had been left in that
territory.
[5]
The
Applicant alleges that he had tried to recover his equipment, having spoken to
local forestry officials and a Russian military officer.
[6]
The
Applicant alleged that, in February 2009, he was accosted by two men, who
identified themselves as officials from the Security Services [SOD]. These men
accused him of being a spy and a traitor to the country. He was warned not to
approach people from Ossetia.
[7]
In
April, 2009, the Applicant returned to the Java district. He alleges that upon
his return four men came to his residence and beat him for not having complied
with their warning.
[8]
Subsequently,
two men from the SOD told the Applicant that he could pay them 30,000 Lari to
settle the accusation of espionage against him. The Applicant only gave them
5,000 Lari. He was, nonetheless, beaten and threatened.
[9]
The
Applicant went into hiding and left Georgia; he arrived in Canada on August
10, 2009 and requested refugee protection on August 17, 2009.
IV. Decision under Review
[10]
The
Board explicitly did not doubt the Applicant’s credibility. Its
negative decision was based on two findings; specifically, that there was no
nexus to a Convention ground under section 96 of the IRPA and due to the
availability of state protection under section 97 of the IRPA.
[11]
With
respect to section 96 of the IRPA, the Board concluded that the
Applicant was simply a victim of a crime of extortion under the false
accusation that he is a spy.
[12]
With
respect to section 97 of the IRPA, the Board found that the Applicant
had not rebutted the presumption of state protection. Reviewing the documentary
evidence, the Board found that Georgia is a democratic state
where the authorities act in response to criminality.
V. Issue
[13]
Is
the Board’s decision reasonable?
VI. Relevant Legislative Provisions
[14]
The
following legislative provisions of the IRPA are relevant:
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Convention
refugee
96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2) A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Définition
de « réfugié »
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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VII. Position of the Parties
[15]
The
Applicant submits that the Board did not provide reasons in support of its
conclusion that his situation has no nexus to any of the Refugee Convention’s
ground. He argues that he was persecuted because of his political opinion
having been accused of espionage. The Board ignored facts which it had accepted
as credible at the outset of its decision and had also ignored the relevant
documentary evidence. Also, the Applicant argues that, in its analysis of the
state protection, the Board erred failing to consider the true basis upon which
he was persecuted.
[16]
In
response, the Respondent submits that the Applicant did not provide evidence to
link his fear of extortion with a Convention ground. The Respondent further
argues that the espionage accusation was simply an excuse by which to extort
money from the Applicant. With respect to section 97 of the IRPA, the
Respondent submits that the Applicant had not sought protection from the
authorities in Georgia before leaving the country.
VIII. Analysis
[17]
The
main issue is in respect of the Applicant’s situation in relation to the
Refugee Convention grounds; therefore, the appropriate standard of review is
one of reasonableness, based on questions of mixed fact and law (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[18]
Turning
to the Convention grounds, it appears from the wording of the Board’s decision,
that it disposed of this matter expeditiously:
Nexus
[14] The claimant’s fear of the
officials/agents from the SOD for not being able to pay their extortive demand
of 30,000 Lari (false accusation of being a spy) does not establish a nexus to
the Convention refugee definition. This is plain and simple criminality.
This finding is supported by a number of Federal Court decisions, which ruled
that victims of criminality, including vendettas, cannot generally establish a
nexus to the Convention refugee definition. Therefore, his claim under section
96 fails. [Emphasis added]
[19]
The
reasoning of this Court, in Gonsalves v Canada (Minister of
Citizenship and Immigration), 2011 FC 648, applies to the present case:
[29] The
Board’s conclusion is unreasonable because it approaches the issue of motive
for the attacks as a yes or no question. The criminals targeting the applicants
may have been motivated by a combination of the applicants’ racial and economic
status. That the motive is at least not purely economic is supported by
the applicants’ reference to racial slurs made against them during the
incidents they allege. It is further supported by other evidence, namely the
testimony given by the applicants. In Katwaru v. Canada, [2007] FCJ No
822 (FC), this Court left open the possibility that where at least one of the
motives is based on a convention ground, nexus might be established. The Court
there decided there was not enough evidence to establish race as a motive, and
therefore declined to find mixed motives. However, the Court left open the
possibility that nexus may be found where there is evidence to support both
alleged motives. In this case there was some evidence before the Board as to
the possibility of mixed motives and therefore the Board erred in failing to
consider whether there were mixed motives and if so, whether the motives could
constitute the convention nexus required. [Emphasis added].
[20]
It
is important to reiterate that the Board did not doubt the Applicant’s
credibility. Furthermore, the documentary evidence, as well as the testimony,
required the Board to conduct a more in-depth analysis of the Applicant’s
allegation that he was not simply targeted because of his wealth, but rather,
because of his political opinions. His persecutors may have had mixed motives.
Indeed, the following excerpts of the transcript indicate that the Applicant
had been approached by the SOD twice without being extorted:
CLAIMANT: They told me, “We know that you’re a
spy. We know that you’ve been to Ossetia.
We have been listening to your phone conversations.”
…
CLAIMANT: I told them that I’m not a spy and if
they’ve listening…and I’m not betraying my country, and if they’ve been
listening to my conversation they should know that I’m talking to them about my
equipment which I’m trying to bring back home.
…
CLAIMANT: They were asking me to write everything,
what kind of information I was taking back and forth.
…
CLAIMANT: When I did not confess and I told them I
will not confess for something that I haven’t done they start to beat up.
(Tribunal Record [TR] at pp 266 and 271).
[21]
The
United States (US) Report, dated April 8,
2011, titled “Department of State. Georgia.” Country
Reports on Human Rights Practices for 2010, states:
…
Also
unresolved at year's end were allegations made in 2009 by the then public
defender and by NGOs that police planted evidence, engaged in inhuman and
degrading treatment, abused official authority, and exceeded the limits of
official authority. Nonparliamentary opposition activists claimed that police
especially targeted them with such actions (see section 1.e.).
According
to the Ministry of Internal Affairs, its General Inspection Service imposed
more disciplinary actions on law enforcement officers during the year than in
previous years. Forms of punishment included reprimands, demotions, and
dismissals. There were 861 such actions compared with 566 in 2009. The ministry
also reported that during the year more police officers were arrested for
committing various crimes, 46 as compared with 29 in 2009. Crimes during the
year included corruption (18 cases), carrying or using narcotics (two), fraud
or excessive use of authority (12), abuse of authority (12), and
misappropriation of state property (two).
The
Human Rights Protection Unit in the Office of the Prosecutor General issued
regular updates on the status of cases, trials, and investigations of human
rights violations. However, NGOs maintained that the incidence of abuse was
higher than the number of cases investigated by the prosecutor general, and
failure to conduct systematic investigations and pursue convictions of all
alleged abusers contributed to a culture of impunity. Human rights NGOs also
asserted that many instances of abuse went unreported by victims due to fear of
reprisals or lack of confidence in the judicial system.
…
The
main human rights abuses reported during the year included abuse of prisoners
and detainees, poor prison conditions, and arbitrary arrest and detention.
There were reports of selective application of the law--crimes allegedly
involving government officials or supporters were slowly investigated and often
remained pending, while crimes allegedly involving persons or organizations
linked to the opposition were investigated quickly and prosecuted to the full
extent of the law. This imbalance led to allegations of impunity for government
officials …
(TR at pp 65-66 and 53).
[22]
Had
the Board considered all of the evidence submitted by the Applicant, its
assessment of whether mixed motives were sufficient to establish a nexus to a
Convention ground would probably have been different.
[23]
This
conclusion, in itself, is sufficient to allow the present application for
judicial review.
[24]
With
respect to the availability of state protection, this Court concludes that the
Board’s finding is vitiated by the fact that it did not take into account the
particular circumstances of the Applicant’s case and the evidence in context.
IX. Conclusion
[25]
For
all of the above reasons, the Applicant’s application for judicial review is
granted and the matter is remitted for redetermination by a differently
constituted panel.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review be granted and the matter be remitted for redetermination by a
differently constituted panel. No question for certification.
“Michel M.J. Shore”
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