Docket: IMM-3324-13
Citation:
2014 FC 707
Ottawa, Ontario, July 16, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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LALI DANELIA
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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 of
the decision of Edward C. Robinson, a member of the Refugee Protection Division
of the Immigration and Refugee Protection Board [the Board], pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act]. The Board dismissed the Applicant’s claim for refugee
protection, concluding that she was not a convention refugee or person in need
of protection under sections 96 and 97 of the Act.
I.
Issues
[2]
The issues in the present application are as
follows:
A.
Do the Board’s findings with respect to
credibility and state protection render the decision unreasonable?
B.
Did the Board breach his duty of procedural
fairness?
II.
Background
[3]
The Applicant is a citizen of Georgia. She has two daughters, Tea and Nazi. Nazi lives in Canada. According to the Applicant’s
Personal Information Form [PIF] narrative, the Applicant was physically and
verbally abused by her husband, Gogi Danelia.
[4]
In 1998, Mr. Danelia was laid off from his position
as vice-minister of the Georgian Ministry of Transportation and was unable to
obtain alternative employment. While unemployed, he began to drink heavily.
[5]
In 2001, Mr. Danelia began to verbally and
physically abuse the Applicant. He also began having an affair. The Applicant
confronted Mr. Danelia about his affair. They separated but reconciled several
weeks later. After several months, Mr. Danelia continued to physically abuse
the Applicant, and his drinking worsened. In 2002, the Applicant again confronted
Mr. Danelia about his affair. He tied the Applicant to a chair, pushed her to
the ground, and pressed a hot iron onto the Applicant’s back. He threatened to
kill the Applicant or their daughters if she ended their relationship or told
anyone about his abuse.
[6]
The Applicant did not report the abuse or leave
Mr. Danelia because of his threats. The Applicant was also concerned about the
ramifications of obtaining a divorce, given the social stigma of divorce in Georgia. In particular, the Applicant feared that it would be difficult for her unwed
daughter to marry if the Applicant were divorced.
[7]
In March, 2012, the Applicant was badly beaten
by Mr. Danelia. She left her home and hid in the city of Rustavi, Georgia. She obtained a fraudulent Israeli passport and travelled to the United States on May 25, 2012. Tea informed Mr. Danelia that the Applicant had gone to the United States. He became angry and physically abused her.
[8]
In her testimony, the Applicant stated that one
of her neighbours was physically abused by her husband and reported that abuse
to the police. However, the police did not effectively respond to this
complaint and the abuse continued and ultimately resulted in her neighbour’s
death. Based on this, the Applicant did not believe that police would assist
her in preventing Mr. Danelia’s abuse. Nazi also testified to the Board that
the police do not effectively respond to victims of domestic abuse.
[9]
The Applicant submitted medical reports from a
Georgian doctor and a Canadian doctor which state that the Applicant has burn
scarring on her back. In her report, the Georgian doctor states that she is the
Applicant’s neighbour, that she treated the Applicant’s burn injuries for a
month, and has witnessed acrimony between the Applicant and Mr. Danelia.
[10]
The Applicant arrived in Canada on June 4, 2012, and applied for refugee protection.
[11]
The determinative issues for the Board were credibility
and state protection.
A.
Credibility
[12]
The Board discounted the testimony of Nazi on
the basis that she stated that police officers are not disciplined in Georgia. The Board cited documentary evidence which suggests that Georgian police officers
are subject to disciplinary sanctions.
[13]
The Board did not believe the Applicant’s claim
that Mr. Danelia had tied her to a chair and burnt her back with an iron.
Because the Applicant previously had the courage to confront Mr. Danelia about
his affair and Mr. Danelia had been drinking, the Board found that it was
implausible that the Applicant could have been physically abused by him.
[14]
The Board also drew a negative credibility
inference from the fact that the Applicant testified that her neighbour had
been abused but did not describe this in her PIF narrative.
[15]
The Board assigned the Applicant’s medical
reports low probative value on the basis that did not believe the facts on
which they were based. The Board also noted that the Georgian doctor reported
that she was an eyewitness to the attack by Mr. Danelia which caused the
Applicant’s burns. However, this was not declared by the Applicant. Further,
the Board noted that the doctor did not report that she encouraged the
Applicant to seek police assistance as the Applicant testified. As a result of
these omissions, the Board drew a negative credibility inference.
B.
State Protection
[16]
The Board found that the Applicant did not rebut
the presumption of state protection as she did not seek state protection.
[17]
The Board cited documentary evidence which shows
that the police have improved their training with respect to responding to
victims of domestic abuse. The Board cited statistics showing that Georgian
police respond to reports of domestic violence and that restrictive orders are
issued by the court system. The Board described other recourse mechanisms
available to the Applicant, the fact that there is a victim and witness
coordination program within the Chief Prosecutors’ Office designed to better
provide services to victims of domestic violence, and phone hotlines and four
shelters in Georgia which provide services for abused women.
III.
Standard of Review
[18]
The standard of review is reasonableness for the
issue of credibility and state protection (Dunsmuir v New Brunswick,
2008 SCC 9 at para 51) and correctness for the issue of procedural fairness (Lai
v Canada (Minister of Citizenship and Immigration), 2005 FCA 125 at para
51).
IV.
Analysis
A.
Do the Board’s findings with Respect to
Credibility and State Protection Render the Decision Unreasonable?
(1)
Credibility
[19]
The Applicant argues that the Board engaged in
speculation by disbelieving the incident where Mr. Daniela tied the Applicant
to a chair and burnt her with an iron (Martinez Giron v Canada (Minister of Citizenship and Immigration), 2013 FC 7 at paras 27-32). There was
no evidence of the physical strength of Mr. Danelia or any other indication
that the Applicant could have prevented his attack.
[20]
The Applicant also disputes that she was
required to describe her neighbour’s efforts to seek state protection in her
PIF narrative, as the PIF instructions request a description of abuse suffered
by similarly-situated persons, not that person’s efforts to seek state
protection.
[21]
The Applicant further contends that the Georgian
doctor did not attest to seeing the injuries occur – rather, the doctor
attested to seeing and treating the Applicant’s injuries after they occurred.
[22]
The Board’s primary negative credibility finding
was that it was implausible that the Applicant could not or would not have
overpowered her husband after he was drinking and began to physically abuse
her. At para 14 of his decision the Board states:
I therefore find that if indeed she had
displayed the kind of courage to confront her violent and abusive husband about
his unfaithfulness, on a balance of probabilities, she is not the kind of
individual to have allowed her husband, in a drunken state, to overpower her in
any physical way. For example, to grab or hold her long enough to sit her down
on a chair and then tied [sic] her to it. That does not make much sense to this
panel.
[23]
This finding reflects a disregard and
misunderstanding of the nature of domestic abuse. To suggest that domestic
abuse is perpetrated against victims whose personal qualities allow it to occur
ignores the fact that abuse is not consensual and takes place in a range of
social and interpersonal circumstances. This conclusion is not justifiable or
intelligible within the meaning described in Dunsmuir. Moreover, there
is no evidentiary basis to conclude that the Applicant could have physically
repelled the attacks of her husband, given the typical size and strength
disparity between a man and a woman. Likewise, given the persistent abuse the
Applicant has suffered, there is no basis to assume that she would have the
psychological strength to defend herself, even if it were physically possible.
[24]
Similarly, a negative credibility finding based
on the Applicant’s omission of her neighbour’s experience seeking state
protection in her PIF narrative is unreasonable in light of the PIF
instructions, which request a description of abuse suffered by
similarly-situated individuals, not the state protection which those
individuals sought.
[25]
Further, it is unclear on what basis the Board
drew a negative credibility inference based on the Applicant and Nazi’s
testimony regarding the effectiveness of state protection for victims of
domestic abuse. These comments were made in the context of their opinion of the
effectiveness of state protection and it is not a reasonable basis to draw a
negative credibility finding.
[26]
The only reasonable credibility finding is that
the Applicant did not state that the Georgian doctor was a witness to Mr.
Danelia’s attack as is claimed in the Georgian doctor’s report. Given the
apparently poor translation of this report from Georgian to English, I am not
convinced that the Board’s interpretation of this report is correct. Regardless,
this finding alone cannot reasonably impugn the Applicant’s credibility. The
Board’s credibility analysis as a whole was unreasonable.
(2)
State Protection
[27]
The Applicant argues that a decision cannot be
reasonable in light of an unreasonable credibility analysis (Cortes v Canada (Minister of Citizenship and Immigration), 2011 FC 329 at para 5).
[28]
In the alternative, the Applicant argues that
the Board relied on the fact that the Georgian government was taking “serious
steps” to combat domestic abuse, rather than assessing the operational adequacy
of those steps (Ruszo v Canada (Minister of Citizenship and Immigration),
2013 FC 1004; Osor v Canada (Minister of Citizenship and Immigration),
2014 FC 541 at para 6). The Applicant cites a United States Department of State
Report for 2011 which states that there are only 56 shelter beds available for
victims of domestic abuse in Georgia. The Applicant contends that this shows
that state protection for victims of domestic abuse is inadequate and that the
Board ignored evidence.
[29]
As a preliminary point, I do not agree that this
Court must necessarily dispose of an application where a board’s credibility
findings are found to be unreasonable (Rusznyak v Canada (Minister of Citizenship and Immigration), 2014 FC 255 at para 57).
[30]
However, I find that the Board did not
adequately consider Chairperson Guidelines 4: Women Refugee Claimants Fearing
Gender-Related Persecution [the Gender Guidelines], and as a result, his state
protection analysis was unreasonable.
[31]
While the Board states at para 8 that he
considered the Gender Guidelines in his decision, Justice Danièle Tremblay-Lamer
made clear in Keleta v Canada (Minister of Citizenship and Immigration),
2005 FC 56 at paras 14-15, that a general statement that the Guidelines were
considered is not necessarily sufficient to show their principles were applied:
14 Though it is not necessary to explicitly
cite the guidelines in the course of its reasons, it is "incumbent on the
Board to exhibit a special knowledge of gender persecution and to apply the
knowledge in an understanding and sensitive manner when dealing with domestic
violence issues": A.Q. v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 834 (F.C.)(QL), citing Newton v. Canada
(Minister and Citizenship and Immigration) (2000), 182 F.T.R. 294
(F.C.T.D.), and Griffith v. Canada (Minister of Citizenship and Immigration)
(1999), 171 F.T.R. 240 (F.C.T.D.).
15 In other words, substance prevails over
form when considering whether the principles in the guidelines were properly
applied and thus the fact that the guidelines were mentioned at the outset of
the Board's decision in the present application does not preclude a priori an
attack on the decision on this basis.
[32]
I find that the Board did not, in substance,
apply the Gender Guidelines, which state at section C.2:
When considering whether it is objectively
unreasonable for the claimant not to have sought the protection of the state,
the decision-maker should consider, among other relevant factors, the social,
cultural, religious, and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related persecution in
the form of rape, she may be ostracized from her community for seeking
protection from the state. Decision-makers should consider this type of
information when determining if the claimant should reasonably have sought
state protection.
(Emphasis added)
[33]
In his state protection analysis, there is no
indication that the Board considered any of these factors in assessing whether
the Applicant had discharged her onus to seek state protection.
[34]
While the Gender Guidelines are not binding on
the Board, this Court has often set aside decisions where board members failed
to consider its principles (IR v Canada (Minister of Citizenship and
Immigration), 2013 FC 973 at para 40). Given this and my finding on the
Board’s credibility conclusions, the decision as a whole is unreasonable.
B.
Did the Board Breach his Duty of Procedural
Fairness?
[35]
The Applicant claims that the Board breached
procedural fairness in not questioning the Applicant as to whether she could
have prevented the abuse against her. In addition, the Applicant asserts that
the finding on this issue was so offensive that it amounts to a reasonable
apprehension of bias.
[36]
The Applicant was on notice that credibility was
an issue in her hearing and she was represented by counsel. The fact that all
specific credibility concerns were not raised with the Applicant during the
course of the hearing does not result in a breach of the duty of procedural
fairness (Mahdoon v Canada (Minister of Citizenship and Immigration),
2011 FC 284 at paras 24-25).
[37]
The test for a reasonable apprehension of bias
in the context of the Immigration and Refugee Protection Board was re-stated by
Justice Evans in Geza v Canada (Minister of Citizenship and Immigration),
2006 FCA 124 at paras 52-53:
52 Although trite, the definition of bias
bears repetition. A tribunal's decision is liable to be set aside for bias
if a reasonable person, who was reasonably informed of the facts and had
thought the matter through in a practical manner, would conclude on a balance
of probabilities that the decision maker was not impartial. A similar test
determines whether a tribunal is independent. Three preliminary considerations
may be added to this general proposition.
53 First, the standard of impartiality
expected of a particular administrative decision-maker depends on context and
is to be measured by reference to the factors identified by L'Heureux-Dubé J. in
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817 at para. 47. The independence of the Board, its adjudicative procedure
and functions, and the fact that its decisions affect the Charter rights of
claimants, indicate that the content of the duty of fairness owed by the Board,
including the duty of impartiality, falls at the high end of the continuum of
procedural fairness.
[38]
The Board’s primary negative credibility finding
was that it was implausible that the Applicant could not or would not have
overpowered her husband after he was drinking and began to physically abuse
her. As discussed above, this finding is perverse and reflects a
misunderstanding of the nature of domestic abuse. It is unjustifiable and
unintelligible within the meaning described in Dunsmuir.
[39]
However, a finding of bias is not to be made
lightly (Arthur v Canada (Attorney General), 2001 FCA 223, at para 8 [Arthur]):
8 It seems to me that the applicant's
counsel has confused the audi alteram partem rule with the right of his client
to a hearing by an impartial tribunal. An allegation of bias, especially actual
and not simply apprehended bias, against a tribunal is a serious allegation. It
challenges the integrity of the tribunal and of its members who participated in
the impugned decision. It cannot be done lightly. It cannot rest on mere
suspicion, pure conjecture, insinuations or mere impressions of an applicant or
his counsel. It must be supported by material evidence demonstrating
conduct that derogates from the standard. It is often useful, and even
necessary, in doing so, to resort to evidence extrinsic to the case. That
is why such evidence is admissible in derogation of the principle that an
application for judicial review must bear on the matter as it came before the
court or tribunal.
(Emphasis added)
[40]
Notwithstanding the nature of the Board’s
finding, the Federal Court of Appeal’s judgment in Arthur leads me to
find that that a reasonable person would not conclude that the Board was biased
based on that finding alone. A review of the transcript does not indicate
conduct that would indicate bias, and the Applicant did not deduce other evidence
that supports her argument. Accordingly, there was no breach of procedural
fairness on this issue.
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