Docket: IMM-4989-16
Citation:
2017 FC 555
Ottawa, Ontario, June 6, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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DAVID
KERDIKOSHVILI
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Defendant
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of the decision of the Refugee Appeal Division (“RAD”) of the Immigration
and Refugee Board of Canada, dated November 8, 2016, confirming the decision of
the Refugee Protection Division (“RPD”) that the Applicant is not a Convention
refugee or person in need of protection pursuant to s 96 and 97, respectively,
of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
[2]
The Applicant is a 31 year old male from Tbilisi,
Georgia. He claims that he suffered harm due to his Ossetian ethnicity and
that the state cannot protect him.
RPD’s Decision
[3]
The Applicant claimed that he had suffered five
attacks because of his ethnicity between 2008 and 2015. The RPD conducted a
review of the objective documentary evidence and found, on a balance of
probabilities, that it offered insufficient proof that Ossetians are persecuted
in Georgia. The RPD also found that in three of the incidents the Applicant
was not attacked because of his Ossetian ethnicity. And, while the other two
attacks may have been based on his ethnicity, both were dealt with
appropriately by the police. Further, they were isolated incidents which, even
taken together, did not rise to the level of persecution given the lack of
supporting objective evidence. The RPD also found that while the Applicant’s
loss of a job because of his Ossetian ethnicity was discriminatory, it was not
evidence of persecution. Further, after one of the attacks the police came to
the hospital to interview the Applicant. When he was released from hospital he
followed up with the police and was told that the investigation was still in
progress. The Applicant did not follow up again. The RPD found that it could
not conclude that the police were unwilling to assist the Applicant as his
evidence was that they were investigating the complaint. In the second
incident the Applicant claimed that he was attacked by a customer because of
his Ossetian ethnicity. The RPD noted his evidence that, within 30 seconds,
the police broke up the fight and that no one was injured. It found, although
charges were not laid, that this was a reasonable response. Given the police
investigation and intervention, the Applicant had not provided clear and
convincing evidence of the state’s inability to protect him and, therefore, had
not rebutted the presumption of state protection.
The RAD Decision
[4]
This is the decision under review. The RAD
found that, in some instances which were not specified, the RPD had speculated
as to the reasons for the attacks without considering assertions made by the
Applicant with respect to his ethnicity. Further, that the Applicant’s
credibility had not been impugned. However, the determinative issue was state
protection. More specifically, whether the Applicant had rebutted the
presumption of state protection with clear and convincing evidence of the
state’s inability to protect its citizens and whether the objective evidence
supported his allegations. The RAD made reference to the European Commission
Against Racism and Intolerance Report of Georgia, Council on Europe, published
on March 1, 2016 (“ECRI Report”) and noted legislative progress aimed at
eliminating discrimination and providing for access to the Public Defender, an
independent institution elected by Parliament authorized to examine complaints
of discrimination. Further, while the letter of the Ombudsman maintained that
there is ethnical aggression in Georgia, the documentary evidence was silent on
any ethical aggression or violence against Ossetians, other than some language
discrimination. The RAD also referred to the United States Department of State
Country Report for Georgia on Human Rights Practices for 2015 (“US DOS Report”)
and the establishment of the Investigation Department of Crimes Committed in
the Course of Legal Proceedings in the Prosecutor General’s Office.
[5]
The RAD concluded, given the level of democracy
in Georgia and the agencies it had identified to which the Applicant could have
sought help, that the Applicant had not rebutted the presumption of state
protection. While he had sought police protection on several occasions, there
was no evidence that any higher authority was approached and it was incumbent
upon the Applicant to at least reach out to agencies who could provide recourse
to him in light of his allegations that the police did not assist him. The RAD
went on to find that it must consider the well foundedness of the Applicant’s
fears and, in that regard, it concurred with the RPD that the preponderance of
the documentary evidence did not indicate persecution against Ossetians in
Georgia. It also agreed with the RPD that the Applicant had failed to
establish that the Georgian state would not offer him adequate protection had
he made efforts to engage the state.
Issue and Standard of
Review
[6]
The parties agree that the sole issue in this matter is
whether an error arises from the RAD’s state protection analysis. The
RAD’s assessment of state protection involves questions of mixed fact and law,
therefore, it attracts the reasonableness standard of review (Tan v Canada
(Citizenship and Immigration), 2016 FC 876 at para 15; Kandha v Canada
(Citizenship and Immigration), 2016 FC 430 at para 15). In reviewing a
decision for reasonableness, the role of the Court is to determine 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). There may be several
reasonable outcomes but “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).
Analysis
[7]
In Ward v Canada (Minister of Employment and
Immigration), [1993] 2 S.C.R. 689, the Supreme Court of Canada held that, absent a complete breakdown
of state apparatus, it should be assumed that the state is capable of
protecting a claimant. The rationale for this is that international protection
comes into play only when a claimant has no other recourse available. Where
the state has not conceded its inability to protect a claimant, as in this
case, an applicant must provide clear and convincing confirmation of a state’s
inability to protect him or her. In situations where protection might
reasonably be forthcoming, refugees are required to approach their own state
for protection (also see Canada
(Minister of Employment and Immigration) v Villafranca, [1992]
FCJ No 1189 (FCA) at para 6; Carrillo v Canada
(Minister of Citizenship and Immigration), 2008 FCA 94 at para 25; Malik
v Canada (Minister of Citizenship and Immigration), 2003 FCT 453 at para
17; Navarrette Andrade v Canada (Citizenship and Immigration), 2013 FC
436 at para 22).
[8]
The Applicant submits that the RAD’s assessment
of Georgia as a democratic country was superficial and flawed, ignoring
relevant evidence in determining where Georgia falls on the “democracy spectrum”. According to the Applicant, the RAD erred in finding that country
conditions should lead to a conclusion that the Applicant faced a high burden
in rebutting the presumption of state protection and whether it was reasonably
practical for him to seek state protection (Guerrero
Hidalgo v Canada (Citizenship and Immigration), 2016 FC 222 at paras 8-10; Rodriguez
Capitaine v Canada (Citizenship and Immigration), 2008 FC 98).
[9]
In my view this argument cannot succeed. The
RAD, in its description of general principles, referenced case law indicating
that a claimant’s burden of proof is directly proportional to the level of
democracy in the state in question: the more democratic the state’s
institutions, the more a refugee claimant must have done to exhaust all courses
of action open to them and, in a functioning democracy, a refugee claimant will
have a heavy burden when attempting to show that they should not have been
required to exhaust all of the reasonable recourses available to them
domestically before claiming refugee status (Kadenko v Canada (Solicitor
General), [1996] FCJ
No 1376 (FCA) (“Kadenko”); Hinzman v Canada (Citizenship and
Immigration), 2007 FCA 171 at para 57)
[10]
The RAD did not err in this approach. Nor did
it find, as submitted by the Applicant, that Georgia “has a high level of democracy”. Rather, it found that according to the documentary evidence
Georgia is a democratic state. It also did not err in this regard as the
documentary evidence in this matter does not suggest that Georgia is not a
functioning democracy, that it is a failed state or even that its ability to function
as a state is significantly compromised. The RAD acknowledged that state
protection may not be perfect but correctly stated that perfection is not
required and its absence does not establish an inability to protect its
citizens. It went on to state that, in rebutting the presumption of state
protection, an applicant must show that he or she has taken all reasonable
steps in the circumstances to seek protection of the state in the context of the
country, the steps taken and the applicant’s interaction with the authorities.
In that regard it was necessary to examine the nature of the human rights
violations, the profile of the alleged abuser, the efforts of the applicant to
seek state protection, the response of the authorities and the documentary
evidence.
[11]
Accordingly, I do not agree that the RAD applied
an overly high burden on the Applicant and that its decision was, therefore,
unreasonable.
[12]
The Applicant also submits that his evidence was
that on several occasions he approached the state for protection and this was
effectively denied because of his Ossetian ethnicity. Accordingly, that his
unimpugned evidence rebuts the presumption of state protection. In that
regard, he claimed that in 2011 his girlfriend became pregnant, her parents
forced her to have an abortion and her father and brother and other relatives
beat the Applicant, causing him to be hospitalized. Doctors called the police
but the police did not contact the Applicant. After his release from hospital
the Applicant went to the police station and was told his case was pending. He
stated in his Basis of Claim narrative (“BOC”) that one officer asked him why
he had chosen a Georgian girl, that he should have chosen an Ossetian girl and
that he should say his thanks that he was not killed. In the spring of 2013,
following the celebration of a religious holiday, the Applicant and others were
attacked by Georgians and he was again hospitalized. Doctors again called the
police and the Applicant spoke with the police but does not recall the details,
having suffered a concussion. A month after his release from hospital he went
to the police to inquire about his complaint and was told that it was in
process and they would let him know once they finished the investigation.
However, the police never did contact him. And, in 2014, in the course of his
employment he visited a home to install internet services and was attacked.
The police arrived and intervened but, asked him if he was Ossetian, why he
came to the house of Georgian refugees from South Ossetia. The Applicant
submits that the blaming of the incident on the Applicant goes to the adequacy
of state protection that would be available to him in the future and that his
experiences demonstrate that the state has no interest in doing anything about
his complaints and that his ethnicity was a factor in their inaction.
[13]
It may well have been open to the RAD to take issue
with the Applicant’s failure to make further inquiries of the police who were
investigating his complaints or to raise his concern with their inaction with a
higher level within the police (Malik at para 18 citing Kadenko at
p 534). Or, as the RPD had done, to question, given the police response,
whether these incidents established the state’s unwillingness or inability to
protect the Applicant. However, the RAD instead found that the Applicant
should have sought help from one of the agencies it identified in its reasons,
that it was incumbent upon him to do so as those agencies could provide
recourse in light of his allegations that the police did not assist him and,
therefore, that he failed to rebut the presumption of state protection.
[14]
The difficulty with this is that this Court has
previously held that the police are presumed to be the main institution
mandated to protect citizens and other government or private institutions are
presumed not to have the means or mandate to assume that responsibility (Graff v Canada (Citizenship and Immigration), 2015 FC 437 at para 24 (“Graff”);
Katinszki v Canada (Citizenship and Immigration), 2012 FC 1326 at para
15 (“Katinszki”); Flores Zepeda v Canada (Citizenship and
Immigration), 2008 FC 491 at paras 24-25). Here the Applicant claimed that
he had been physically attacked, thus the actions complained of were not just
discriminatory, but were criminal in nature. However, the RAD did not explain,
and it is not apparent from the record, how any efforts undertaken by the
agencies it identified would translate into state protection for the Applicant
at the operational level as against future ethnically motivated attacks (Graff
at paras 21-23; Majoros v Canada (Citizenship and Immigration), 2013 FC
421 at para 20 (“Majoros”); Ignacz v Canada (Citizenship and
Immigration), 2013 FC 1164 at para 23; Katinszki at para 14).
[15]
The ECRI Report referenced by the RAD states that
the Public Defender can hear a case and reach a conclusion as to whether
someone was the victim of discrimination. The Public Defender can also make a
recommendation as to how to restore the violated equality, but its conclusions
and recommendations are not legally binding and cannot be enforced. In such
cases victims of discrimination still have to bring their case to the courts.
The ECRI Report does not suggest that the Public Defender can provide the
Applicant with an avenue of protection as against physical assaults. I note
that the US DOS Report states that NGOs viewed the Public Defender’s Office,
which has a mandate to monitor human rights and investigate allegations of
abuse and discrimination, as the most objective of the government’s human
rights bodies. However, that the Public Defender’s authority does not include
the power to initiate prosecution or other legal actions. It has the right to
make non-binding recommendations to law enforcement agencies to investigate
particular human rights cases. The RAD also referenced documentary evidence
indicating that the General Inspection Service of the Ministry of Internal
Affairs (“Ministry”) imposed fewer disciplinary measures on enforcement
officers in 2015 than in the prior year. However it is again unclear how
disciplinary action imposed by the Ministry would translate into the Applicant
being afforded actual state protection.
[16]
That said, the RAD also found that the documentary
evidence did not support a finding that Ossetians face ethnic discrimination or
violence in Georgia and, upon my review of the record, I conclude that the RAD
did not err in that finding. Thus, this is not a situation such as Majoros
where the documentary evidence suggested that persecution against Roma in
Hungary was widespread and indiscriminate and, therefore, unless the attacks
were by the same person, continued attempts by the applicants to engage the
authorities would not necessarily result in future state protection. In those
types of cases, documentary evidence, rather than individual attempts to seek
protection may be more relevant to a state protection analysis (Majoros
at paras 14-16). In this matter, in at least two of the attacks the assailants
were known to the Applicant, so it is possible that complaints to the Public
Defender or the Ministry could have resulted in those cases being progressed,
but this is not identified by the RAD as the recourse it envisioned as
available to the Applicant, nor does the RAD assess whether protection from
those sources may have been reasonably forthcoming in the Applicant’s
circumstances or address the totality of the claimed attacks.
[17]
Viewed in whole, while the RAD’s reasons recite at
length the underlying principles of state protection and reference extracts
from the documentary evidence, the RAD devotes only a single paragraph to its
analysis. Given that the RAD explicitly acknowledged that the Applicant’s
credibility had not been impugned but did not address his evidence of prior
attacks which he attributed to his Ossetian ethnicity, and, did not explain how
turning to the agencies that it identified would serve to provide actual state
protection to the Applicant from further physical attacks, in my view, its
conclusion that the Applicant failed to rebut the presumption of state
protection is unreasonable.
[18]
Further, while the RAD does not err in its finding,
and in its agreement with the RPD that the preponderance of the documentary
evidence does not support persecution against Ossetians generally in Georgia,
it does not tie that finding into its state protection finding or otherwise
explain its significance to the decision. It has been held that, when
undertaking a contextual approach in determining whether a claimant has
rebutted the presumption of state protection, a number of factors are to be
considered which must be situated against available documentary record as the
record may serve to inform whether the circumstances of the case are plausible
within the context of a given country (Torres v Canada (Citizenship and
Immigration), 2010 FC 234 at paras 37 and 43). Perhaps this is what the
RAD intended. Yet it accepted that the Applicant was credible and made no
clear adverse plausibility findings concerning his claim that the attacks were
ethnically motivated. It may be surmised that in the absence of documentary
evidence supporting current persecution of Ossetians in Georgia, being an
objective basis for the Applicants’ fear, the RAD felt that there could not be
clear and convincing evidence to rebut the availability of protection to the
Applicant. Again, however, the RAD did not address the Applicant’s evidence of
attacks which he attributed to his Ossetian ethnicity and acknowledged that the
Applicant’s credibility was not impugned. Accordingly, in my view, as this is
not reconciled in the RAD’s reasons, the decision is also unreasonable as it is
unintelligible.
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