2020 RLLR 189

2020 RLLR 189 Citation: 2020 RLLR 189 Tribunal: Refugee Protection Division Date of Decision: August 27, 2020 Panel: N. Bower Counsel for the Claimant(s): Vera Povaliaeva Country: Georgia RPD Number: VB8-02778 Associated RPD Number(s): N/A ATIP Number: A-2020-00859 ATIP Pages: 000562-000572 REASONS FOR DECISION INTRODUCTION [1] These are the reasons for the decision in the claim of a citizen of Georgia who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the IRPA).1 DETERMINATION [2] I find that the claimant is a person in need of protection. ALLEGATIONS [3] The claimant is from Martkopi, a town in Georgia about half an hour’s drive from the capital city of Tbilisi. [4] In May 2007 the claimant was convicted of possessing small amounts of two narcotic drugs and was sentenced to seven and a half years in prison. He appealed the sentence, and reached a plea agreement with the prosecutor. His sentence was reduced to two years’ imprisonment and five years’ probation. The claimant alleges that one of the drugs, heroin, was planted on him to increase his sentence. [5] As part of the plea agreement for a reduced sentence, the claimant was required to provide a statement to the authorities that he had purchased drugs from a specific named individual. The claimant did not recognize the name and had never purchased drugs from him. The claimant’s lawyer recommended that the claimant provide the statement, and the claimant did so. [6] When the claimant was imprisoned his relationship with his wife ended. He entered into a common-law relationship with another woman after he was released from prison. [7] In 2013 the claimant needed his ex-wife’s signature as part of his application for a Canadian work visa. His ex-wife’s brother, the claimant’s prior brother-in-law, demanded that the claimant sign a dept receipt stating that the claimant owed the brother-in-law US$10,000 before the ex-wife would sign as required. The claimant signed the debt receipt, and his ex­ wife signed for the work visa application. [8] The claimant received a Canadian work visa in 2013 and travelled to Canada. He has remained in Canada since except for two brief trips to Georgia to visit his wife and their son, who was born very shortly after the claimant first came to Canada. He extended his work visa multiple times. After he was unable to obtain an extension in 2018, he sought refugee protection. [9] Since seeking protection in 2018, the claimant has learned that a strange man has been looking for him, demanding to know from the claimant’s brother and common-law partner where to find the claimant. This man blames the claimant for destroying his life, apparently by naming this man as a drug dealer, resulting in over a decade in prison. This strange man has assaulted the claimant’s brother in Martkopi, and has threatened and harassed the claimant’s common-law partner and young son in Tbilisi. [10] The claimant alleges that he faces harm from Georgian police because of his history of drug use. He alleges that he will be imprisoned for using drugs, even though he now no longer uses drugs. He alleges that his ex-brother-in-law will harm him because the claimant left his ex-wife and because the ex-brother-in-law wants the claimant to pay the amount promised by the debt receipt. He alleges that he faces a risk to his life from the stranger who blames the claimant for his lengthy imprisonment. ANALYSIS Identity [11] I find that the claimant is a national of Georgia. He has provided a copy of his Georgian passport with the Canadian work visa he used to enter Canada.2 He has also provided a certificate from the Ministry of Justice of Georgia stating that he is a citizen of Georgia who received amnesty for his conviction.3 Exclusion – 1F(b) [12] I find that the claimant is not excluded from protection by Article 1F(b) of the Convention. [13] Under section 98 of the IRPA and Article 1F(b) of the Convention, a person is excluded from protection if there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. I find, based on the evidence before me, that there are not serious reasons for considering that the claimant committed a serious crime outside Canada before seeking protection in Canada. [14] If a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, there is a presumption that the crime is serious.4 Factors to consider when determining if a crime is serious include the elements of the crime, the mode of prosecution, the prescribed penalty, and the aggravating and mitigating circumstances underlying the crime.5 [15] I find that there are serious reasons to consider that the claimant has possessed prescribed drugs in Georgia for personal use. He has acknowledged that he used drugs in the past. I find that there are not serious reasons to consider that the claimant trafficked in drugs; there is no evidence before me to suggest that the claimant has been involved in trafficking. [16] I find in the circumstances of this claim that possession of drugs for personal use is not a serious crime. The maximum sentence in Canada for possession for personal use (as opposed to possession for the purpose of trafficking) is seven years’ imprisonment.6 It is not presumed serious. As noted specifically in the context of the severe punishments imposed for personal use of drugs in Georgia, criminalizing drug use has few if any benefits for either public safety or for the health of those addicted to drugs.7 Canadian courts are recognizing that drug addiction is a health issue rather than a moral choice deserving of condemnation, and possession of personal use of even “hard” drugs may result in a conditional discharge (which does not leave a criminal record should the person sentenced complete the conditions).8 There is nothing aggravating about the circumstances of the claimant’s possession. Although the claimant was initially sentenced to more than seven years in prison in Georgia, Georgia’s criminal laws regarding drugs are particularly harsh, and have become somewhat more liberal since the claimant’s conviction.9 Credibility [17] I find that the claimant was a credible witness. [18] The claimant testified in a spontaneous and responsive manner. There were no significant inconsistencies in the evidence before me. [19] The claimant provided several corroborating documents. He has provided a notarized letter from his Georgian lawyer regarding the claimant’s drug conviction.10 He has provided a second notarized statement from his Georgian lawyer about his statement about the stranger.11 In these letters the lawyer states that it is common for police to plant drugs on suspects, that the claimant did not want to plead guilty to the charges he faced, and that the lawyer recommended that the claimant plead guilty in order to receive the minimum punishment of seven and a half years in prison instead of nine and a half years in prison. The lawyer goes on to state that the prosecutor’s office forced the claimant to state that the claimant purchased drugs from someone the claimant did not actually know, in exchange for a significantly reduced sentence. He has provided a copy of the verdict of the Chamber of Appeals of Criminal Cases of Tbilisi Court of Appeals reducing his sentence on the motion of the prosecutor.12 [20] The claimant has provided notarized letters from his brother13 that a stranger has threatened the claimant and attacked the brother after demanding information about the claimant. He has provided a notarized letter from a witness who heard one encounter and saw the claimant’s brother immediately after the brother was beaten by the stranger.14 He has provided a notarized letter from a friend who saw the claimant’s brother’s injuries immediately after another assault.15 He has provided copies of medical report about the brother’s injuries from this assault.16 He has provided copies of the police complaints made by the brother about the assaults, which note that each case was closed “due to inadequate evidence and lack of witnesses in the case.”17 [21] The claimant has provided a notarized letter from his common-law partner that she was threatened on two occasions by a stranger who accused the claimant, her partner, of ruining the stranger’s life.18 He has provided a notarized letter from a witness to one of those threatening incidents.19 He has provided a notarized letter from a different witness to the other threatening incident.20 He has provided a copy of the police complaint made by his common­ law partner about the threatening, which notes that the case was closed “due to inadequate evidence and lack of witnesses in the case.”21 Risk of harm [22] Considering the evidence before me in this claim, I find that the claimant has established on a balance of probabilities that he faces a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Georgia. [23] The evidence shows that a stranger blames the claimant for the stranger’s lengthy imprisonment and intends to harm the claimant as revenge. The stranger has attacked and injured the claimant’s brother in Martkopi, the small town where the claimant used to live. In one encounter another man helped the stranger to assault the claimant’s brother. The stranger has threatened the claimant to the claimant’s common-law partner in Tbilisi, the capital and largest city in Georgia. The stranger approached the claimant’s son in a manner that made the claimant’s partner fear that the stranger might abduct or harm the son. The stranger has repeated that he blames the claimant for ruining his life and intends to enact his revenge on the claimant when he finds the claimant. [24] The claimant’s common-law partner and son moved to another neighbourhood within Tbilisi recently to avoid further harassment from the stranger. The partner stays in the house unless she has to go out, and the son only goes to school. The partner has been told by her prior neighbours that the stranger continues to appear around her previous house searching for her and threatening the claimant’s life.22 [25] (I note that several of the translations of witnesses’ letters refer to a “foreign man.” At the hearing the claimant and the interpreter clarified that ‘foreign’ meant ‘strange’ or ‘unknown,’ rather than someone from another community or country.) [26] The claimant does not know much about this stranger. He does not know the person’s name, background, or available resources. He does not know how the stranger found his family, either his brother in Martkopi or his partner and son in Tbilisi. He suggests that the stranger may have been able to get this information from the criminal underground through connections from prison, but this is speculation. [27] As the claimant has never seen this man, and the claimant’s brother and common-law partner did not see the man who encountered the other, the claimant cannot be certain that it was the same man. However, I find the possibility that two men have recently begun to hunt the claimant making the same threats with the same justification to be implausible. It is more likely that it is the same man who first attacked the claimant’s brother and then threatened the claimant’s common-law partner. [28] Based on the evidence, I find the following. The stranger blames the claimant for his lengthy period of imprisonment that ruined his life. The stranger has found the claimant’s brother in Martkopi and assaulted him with a knife. The stranger has found the claimant’s family in Tbilisi and threatened them. The stranger has used physical violence against those close to the claimant, and has threatened to kill the claimant. The stranger has not faced any consequences for his actions. [29] Despite all that is unknown about the stranger, the evidence establishes that the stranger is motivated to find and harm the claimant, and has located those connected to the claimant in two different cities, including the largest city in the country. The stranger is willing to use a weapon and inflict violence of those connected to the claimant. There is nothing in the evidence that suggests that the stranger will not continue to pursue the claimant or will not carry out his threats against the claimant. [30] Based on the evidence before me in this claim, I find on a balance of probabilities that this man is able to and intends to seriously hurt or kill the claimant should the claimant return to Georgia. I therefore find that the claimant faces a risk to his life or a risk of cruel and unusual treatment or punishment in Georgia. State protection [31] I find, considering the evidence before me in this claim, that the claimant would not receive adequate state protection in Georgia. [32] The police response to emergency calls is best in Tbilisi, the capital, but it can take over an hour for the police to respond to a call even there. Police officers have inconsistent levels of training and lack resources. Work still remains to improve the effectiveness of post-incident investigations by police.23 At times civilian authorities have not maintained control over security forces, and police forces have abused their powers to commit human rights abuses, particularly for political purposes.24 Failure to investigate into these abuses has further decreased public confidence in the police and prosecutors.25 [33]] The claimant’s brother and common-law partner have both reported their encounters with the stranger to the police. The police did not investigate successfully. The claimant’s mother reported to the police an incident when the claimant’s ex-brother-in-law threatened her; that report was also closed “due to inadequate evidence and lack of witnesses in the case.”26 [34] The claimant’s family members have not received adequate assistance from the police. They have continued to face violence from the stranger and the claimant’s ex-brother-in-law. This is consistent with the documentary evidence that reports Georgian police lack training and resources and do not have the confidence of the public. Internal flight alternative [35] I find, considering all of the evidence before me, that the claimant does not have a viable internal flight alternative. I find that the claimant faces a risk to his life or a risk of cruel and unusual treatment or punishment throughout Georgia. [36] The stranger has located the claimant’s family members in his home town of Martkopi and in the capital city of Tbilisi. He has demonstrated an ability to locate those connected to the claimant in two locations, including the most populated city in the country. [37] Georgia is a relatively small country with a population under four million persons. Tbilisi, the capital, has just over one million persons. More than four in ten Georgians live outside urban areas.27 If the claimant relocated, he would likely be obvious as a newcomer to the area. [38] The Georgian government maintains a civil registry that includes the name, residence, and national ID number of each citizen, and a police officer may be able to access this registry to determine any person’s address.28 A person buying a SIM card in Georgia must register using a form of identification, either a passport, national ID card, or driver’s licence.29 Police have abused surveillance systems with impunity, although primarily for political purposes, and “there are no effective mechanisms for preventing corruption in state-owned enterprises and independent regulatory bodies.”30 The combination of national registration with addresses and official corruption provides a mechanism for someone with sufficient connections or wealth to discover a target’s location. [39] Considering all of the evidence, I find that the stranger has demonstrated the motivation and ability to pursue the claimant, and may have access to a national database listing the claimant’s address in Georgia. I therefore find that the claimant does not have a viable internal flight alternative. CONCLUSION [40] Based on the analysis above, I conclude that the claimant a person in need of protection pursuant to section 97(1) of the IRPA. Accordingly, I accept the claim. (signed) N. BOWER August 27, 2020 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit 1. 3 Exhibit 10. 4 Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, para. 62. 5 Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404, para. 44. 6 Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 3(a). 7 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 9.4: Harsh Punishment. The Human Toll of Georgia’s Abusive Drug Policies. Human Rights Watch. 13 August 2018. 8 R. v. Park, 2020 ONSC 3941. 9 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 9.4: Harsh Punishment. The Human Toll of Georgia’s Abusive Drug Policies. Human Rights Watch. 13 August 2018. 10 Exhibit 7, pp. la-5a. 11 Exhibit 6, pp. 24-28. 12 Exhibit 6, pp. 14-23. 13 Exhibit 6, pp. 29-33; exhibit 7, pp. 14a-16a. 14 Exhibit 6, pp. 38-41. 15 Exhibit 7, pp. 25a-26a. 16 Exhibit 6, pp. 34-37; exhibit 7, pp. 19-20. 17 Exhibit 6, pp. 42-43. 18 Exhibit 6, pp. 51-55. 19 Exhibit 6, pp. 58-62. 20 Exhibit 6, pp. 63-66. 21 Exhibit 6, pp. 56-57. 22 Exhibit 7, pp. 34a-45a. 23 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 7.1: Georgia. 2020 Crime and Safety Report. United States. Overseas Security Advisory Council. 11 May 2020. 24 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 2.1: Georgia. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. 25 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 2.2: Georgia. Human Rights in Eastern Europe and Central Asia: Review of 2019. Amnesty International. 16 April 2020. EUR 01/1355/2020. 26 Exhibit 7, pp. 32a-33a. 27 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 1.3: Georgia. The World Factbook. United States. Central Intelligence Agency. 17 June 2020. 28 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 10.1: Police structure at the national and local levels; whether there exists a national computer system or registry of citizens that police have access to; whether police officers in districts not under their jurisdiction have access to an individual’… Immigration and Refugee Board of Canada. 25 March 2015. GEO105101.E. 29 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 11.1: Georgia. Freedom on the Net 2019. Freedom House. 2019. 30 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 2.1: Georgia. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.