Docket: IMM-2853-13
Citation:
2014 FC 1056
Ottawa, Ontario, November 10, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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ZAALI IVANEISHVILI
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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
[1]
The applicant sought Canada’s protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act]. His request was refused by the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board). The
applicant now asks for judicial review of that decision pursuant to subsection
72(1) of the Act.
[2]
The applicant requests that the decision be set
aside and the matter returned to the Board for redetermination by a different
panel of the Board.
I.
Background
[3]
Zaali Ivaneishvili (the applicant) is a citizen
of Georgia from the city of Kutaisi. He arrived in Canada on June 6, 2011 and
applied for refugee protection about a month later. His first hearing before
the Board was adjourned due to interpretation issues, but his case was
eventually heard on March 12, 2013.
[4]
In essence, the applicant’s claim centered on
his fear of a man named Vakhtang Tsakadze, who is the chief of the Special
Measures Department for the Constitutional Security of Kutaisi (also called the
Zonderi or Special Forces by the applicant). The applicant alleged that he and
his brother operated a successful business back in 2008, but this was
interrupted when Mr. Tsakadze tried to extort half of the profits from the
applicant’s brother. When his brother refused, the applicant said that Mr.
Tsakadze framed his brother for a crime and arrested him and his brother was
only allowed to go free by promising to pay. Instead though, his brother went
to Spain.
[5]
This left the applicant unemployed, but he soon
started working for the Democratic Movement – United Georgia, a political party
opposed to the government. The applicant said that he did this for several
years and in 2011, helped organize a demonstration in Tbilisi, the capital
city. However, Mr. Tsakadze spotted him at the demonstration and the applicant
alleged that he was afterward abducted and beaten by Mr. Tsakadze’s special
forces. He said that he called home to discover that the police had been there
looking to kill him and he fled the country shortly thereafter.
II.
Decision Under Review
[6]
By a decision dated March 18, 2013, the Board
denied the applicant’s claim. For it, the determinative issues were
credibility, state protection and internal flight alternative.
[7]
After setting out some of the principles of a
state protection analysis, the Board noted that it had several credibility
concerns. The letter the applicant presented to prove his political involvement
essentially only said that he was “really the member of
political party the “Democratic Movement – United Georgia.”” He did not
present the original version of the document. It was in English and it gave no
details about his position, role or the dates for which he had been a member.
The Board found it useless.
[8]
Further, he said in his personal information
form (PIF) narrative that both he and his brother had been extorted by Mr.
Tsakadze, but changed his mind at the hearing and said that only his brother
had been. He could give no explanation for this discrepancy, despite having had
an opportunity to correct it when he amended his PIF. He also gave confusing
and contradictory answers when being asked about the political situation in Georgia, but the Board chalked that up to a misunderstanding and let it go.
[9]
Still, the applicant’s testimony was confusing
when he talked about the event that triggered his departure too. Despite his
earlier testimony that Mr. Tsakadze did not bother him for three years because
he did not know that he was an equal partner in their business, he claimed that
Mr. Tsakadze might have targeted him at the demonstration for revenge. Further,
he said he was arrested in his PIF, but then only that he was abducted and
beaten in his testimony. As well, he claimed the beating resulted in “broken sides and broken head”, but soon admitted that
he just had bruises and was treated with painkillers. The Board found that he
had embellished his injuries.
[10]
Finally, the applicant never went to the police
after this beating, saying only that he knew he would not have a good day if he
did. The Board did not consider that a reasonable explanation. Further, his
corroborating evidence was not convincing. The letter from his political
organization gave no details and the letter from his father was neither dated
nor signed. It also said that he was sentenced to death, which the applicant
admitted could not be true.
[11]
Consequently, the Board concluded that the
applicant had not presented clear and convincing evidence to rebut the
presumption of state protection. Also, though the Board accepted that the
applicant feared Mr. Tsakadze, the Board did not accept that there was any political
motive underlying that.
[12]
Had it been necessary, the Board also would have
found that Tbilisi would be an internal flight alternative.
III.
Issues
[13]
The applicant states the issue as follows: “Did the Refugee Division err in fact, err in law, breach
fairness or exceed jurisdiction?” In essence, he argues that the Board
erred in five ways: (1) by failing to find a political nexus; (2) by failing to
consider section 97 grounds; (3) by finding state protection; (4) by finding an
internal flight alternative; and (5) by making unreasonable credibility
findings.
[14]
I will address the issues as follows:
A.
What is the standard of review?
B.
Was the Board’s decision reasonable?
IV.
Applicant’s Written Submissions
[15]
The applicant argues that his evidence showed
that he was active in a political party opposing the one to which Mr. Tsakadze
belonged. Although personal revenge might have been a factor, so too could politics
have been and so the Board erred by ignoring the possibility of a mixed motive.
Even if it was only revenge, the applicant says the Board erred by failing to
consider whether the risk falls under either paragraph of subsection 97(1).
[16]
Further, he argues that the Board’s finding on
state protection was unreasonable since the agents of persecution were the
police and Special Forces. As he explains in his reply memorandum, there were
no other authorities to whom he could go.
[17]
Moreover, the applicant says the Board’s finding
that Tbilisi was an internal flight alternative was incomprehensible. Tbilisi was the very place that he was captured and beaten. Besides, Tbilisi is only 200
kilometres away from Kutaisi. He says there is nowhere he could hide that a
chief of the Special Forces could not find him.
[18]
Beyond that, the applicant concedes that most of
the Board’s credibility analysis was reasonable. However, he takes issue with
its finding that his injuries were not severe since he did not seek treatment
right away. He argues that the Board does not have the medical expertise to
make that inference.
V.
Respondent’s Written Submissions
[19]
The respondent says that the standard of review
is reasonableness.
[20]
The respondent says that the state protection
finding was reasonable and that is determinative under both section 96 and
subsection 97(1) of the Act. Specifically, the applicant never made a single
attempt to approach the state for protection, so he hardly provided the clear
and convincing evidence necessary to overcome the presumption of adequate state
protection.
[21]
Further, the respondent says that the Board
never believed that the applicant had been targeted or detained by Mr.
Tsakadze. The respondent says that these credibility findings were many and
persuasive.
[22]
As for the internal flight alternative, the
respondent says it was reasonable to find that Tbilisi would be safe. That
finding was superfluous since the other grounds were dispositive.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[23]
I agree with the respondent that all of the
applicant’s arguments raise questions of fact or of mixed fact and law.
Consequently, the standard of review is reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 53, [2008] 1 S.C.R. 190 [Dunsmuir]; Ruszo
v Canada (Citizenship and Immigration), 2013 FC 1004 at paragraphs 21 and
22, [2013] FCJ No 1099).
[24]
This means that I should not intervene if the
decision is transparent, justifiable, intelligible and within the range of
acceptable outcomes (see Dunsmuir at paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59, [2009] 1
SCR 339 [Khosa]). Put another way, I will set aside the Board’s decision
only if I cannot understand why it reached its conclusions or how the facts and
applicable law support the outcome (see Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 16, [2011] 3 S.C.R. 708). I cannot substitute my own view of a
preferable outcome, nor can I reweigh the evidence (Khosa at paragraphs
59 and 61).
B.
Issue 2 - Was the Board’s decision reasonable?
[25]
With respect to credibility, the applicant only
takes issue with the Board’s finding that the applicant’s injuries were not as
severe as he made them out to be. He says that required medical expertise and
was therefore an impermissible basis for a credibility finding (see Iantbelidze
v Canada (Minister of Citizenship and Immigration), 2002 FCT 932 at
paragraphs 32 and 33, 222 FTR 300; Arsan v Canada (Minister of Citizenship
and Immigration), 2010 FC 1252 at paragraph 22, 94 Imm LR (3d) 302).
[26]
However, in those cases, the Board was drawing
inferences about the person’s health from their activities. That is not what
happened here. Rather, the Board reasoned as follows:
When asked the nature of his injuries, he
responded that he had “broken sides and broken head”, yet when further
questioned, he wasn’t treated, until he reached Luthuania [sic] some
days later, for bruises with painkillers. The Board concludes that this was an
attempt on the part of the claimant to embellish the merits of his claim.
[27]
Though it is a little unclear, the Board was not
saying that his injuries could not have been severe since he waited before
seeking treatment. Rather, the Board tested the applicant’s statement that he
had a broken head and broken sides and the applicant subsequently admitted that
all he had were bruises and no broken bones. She inferred that his first claim
was exaggerated to bolster his claim. That is a reasonable finding.
[28]
As for state protection, the Board’s decision
was reasonable. In Ruszo at paragraphs 32 and 33, Chief Justice Paul Crampton
relied on a wealth of jurisprudence to make the following observations:
32 An applicant for refugee protection
is required to demonstrate that he or she took all objectively reasonable
efforts, without success, to exhaust all courses of action reasonably available
to them, before seeking refugee protection abroad (Hinzman, above, at
para 46; Dean v Canada (Minister of Citizenship and Immigration), 2009
FC 772, at para 20; Salamon, above, at para 5). Among other things, this
requires claimants for refugee protection “to approach their home state for
protection before the responsibility of other states becomes engaged” (Ward,
above, at para 25; Kim v Canada (Minister of Citizenship and Immigration),
2005 FC 1126, at para 10 [Kim]; Hassaballa v Canada (Minister of
Citizenship and Immigration), 2007 FC 489, at paras 20-22); Camacho v
Canada (Minister of Citizenship and Immigration), 2007 FC 830, at para 10; Del
Real v Canada (Minister of Citizenship and (Immigration), 2008 FC 140, at
para 44; Ramirez v Canada (Minister of Citizenship and Immigration),
2008 FC 1214, at para 28; Stojka v Canada (Minister of Citizenship and
Immigration), 2012 FC 1371, at para 3; Ruiz Coto v Canada (Minister of
Citizenship and Immigration), 2012 FC 1211, at para 11; Matthews v
Canada (Minister of Citizenship and Immigration), 2012 FC 535, at paras
43-45; Kotai v Canada (Minister of Citizenship and Immigration), 2013 FC
693, at para 31; Muli v Canada (Minister of Citizenship and Immigration),
2013 FC 237, at paras 17-18; Ndoja v Canada (Minister of Citizenship and
Immigration), 2013 FC 163, at paras 16-18, 25; Dieng v Canada (Minister
of Citizenship and Immigration), 2013 FC 450, at para 32).
33 In this regard, doubting the
effectiveness of state protection without reasonably testing it, or simply
asserting a subjective reluctance to engage the state, does not rebut the
presumption of state protection (Ramirez, above; Kim, above). In
the absence of a compelling or persuasive explanation, a failure to take
reasonable steps to exhaust all courses of action reasonably available in the
home state, prior to seeking refugee protection abroad, typically will provide
a reasonable basis for a conclusion by the RPD that an applicant for protection
did not displace the presumption of state protection with clear and convincing
evidence (Camacho, above).
[29]
In this case, the applicant chose not to report
the assault to the police. The Board asked him why in the following exchange:
MEMBER: Did you go to the
police?
CLAIMANT: No.
MEMBER: Why not?
[…]
CLAIMANT: I did not trust them.
MEMBER: You did not trust
them; why not?
CLAIMANT: I knew that if I would
show up at the police I would not have a good day.
MEMBER: What do you mean by
that?
CLAIMANT: Tsakadze’s order was to
destroy me and that is why I would not be able to show up at the police.
(transcript of hearing (12 March 2013) at
page 40)
[30]
The applicant objects to the Board’s expectation
that he should go to the police, saying that the police and the Special Forces
were the agents of persecution.
[31]
However, it is not actually clear from the
record what agency the Special Forces are or in what way they are connected to
the police. The claimant tended to use the words interchangeably. For instance,
in his PIF narrative, he said that after the assault, his father told him that “police had raided our home that day looking for me and
threatening to kill me.” However, in the letter purportedly from his
father, his father described that event as follows: “Employees
of Special Forces came. They were asking my son’s whereabouts.”
[32]
Even accepting that Mr. Tsakadze controlled the
police, the applicant testified that he was only the chief in his city, Kutaisi (transcript of hearing (12 March 2013) at pages 37 and 38). He also said that the
people who grabbed him were a “special group of people
with masks,” who he believed “were from my city,
police and the head, who is the head of the … Tsakadze”. (transcript of
hearing (12 March 2013) at page 43).
[33]
The crime happened in Tbilisi however, and the
applicant presented no clear and convincing evidence that Mr. Tsakadze had any
influence in Tbilisi. He simply said that he did not think he would have a good
day if he reported the crime there. At most, this demonstrates only a
subjective reluctance to approach the state for protection and it was
reasonable for the Board not to be persuaded by that.
[34]
The applicant also argues that the documentary
evidence showed that police acted with impunity, citing: United States
Department of State, Country Reports on Human Rights Practices for 2011 –
Georgia at pages 2, 9 and 10. However, that document reports mixed results
in that regard, also listing a number of punishments visited against police
officers for abuse. It is not so compelling that it would be objectively
unreasonable for the applicant to have even tried to approach the state for
help (see Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at
724, 103 DLR (4th) 1; Ruszo at paragraph 45).
[35]
Consequently, the Board’s state protection
analysis was reasonable and that makes the applicant’s other complaints
irrelevant.
[36]
After all, a fear of persecution is not
well-founded where state protection exists (Ward at 712), so it does not
matter if there is any nexus to political opinion. In any event, the Board did
not ignore the possibility of a mixed motive. It expressly found that “the perpetrator is seeking revenge, rather than a political
motive.”
[37]
As well, a state protection requirement is
incorporated into subparagraph 97(1)(b)(i).
[38]
As for a danger of torture under paragraph
97(1)(a), the applicant presented no evidence that Mr. Tsakadze was acting in
an official capacity and the Board expressly found that Mr. Tsakadze was
motivated by personal revenge. Given that finding, it is evident that the Board
concluded that there was no danger of torture as that term is defined by
article 1.1 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85.
[39]
As such, the Board’s finding that the applicant
had not rebutted the presumption of state protection was dispositive and there
is no need to consider whether its finding of an internal flight alternative
was also reasonable.
[40]
I would therefore dismiss this application for
judicial review.
[41]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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