TB6-10338

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-10338 Private Proceeding / Huis clos Redetermination of the Appeal - Nouvelle décision relative à l'appel Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 22, 2018 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard M. Addinall Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), who is a citizen of Georgia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The RPD found that there was not a serious possibility that the Appellant would be persecuted in Georgia, or that, on a balance of probabilities, he would be personally subjected to a danger of torture or face a risk to life, or risk of cruel and unusual treatment or punishment, if returned to Georgia. [2] The Appellant submits that the appeal should be allowed, and that either he be found to be a Convention refugee or person in need of protection. In the alternative, the matter should be referred back to a different member of the RPD for re-determination. DETERMINATION [3] The Refugee Appeal Division (RAD) confirms the decision of the RPD and dismisses the appeal pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 Background [4] The Appellant alleges that he suffered harm due to his Ossetian nationality. He outlined incidents that have occurred to Ossetian people. The Appellant describes how he was beaten up in September 2008, and required medical attention but was afraid to go to the police. [5] The Appellant describes a failed relationship because his girlfriend's parents objected to his Ossetian identity. This relationship involved an abortion sometime after 2010, and the resulting beating by his girlfriend's family. The Appellant went to the police station after release from hospital and was told that his case was pending. [6] In the spring of 2013, while celebrating a religious holiday called Benisoba, Georgians attacked the Appellant and another man, and they were taken to hospital. The police became involved and a month after his release, he was told by the police that his investigation was in process. [7] The Appellant describes another incident that occurred in April 2014, where the police broke up a fight between the Appellant and a customer he was attempting to provide service for. On September 28, 2015, the Appellant was attacked by 5 men because he had defended the political leader of the UNM, and he received medical assistance from a paramedic. [8] As a result of the above, the Appellant left Georgia on XXXX XXXX, 2015, arriving in Canada on XXXX XXXX, 2016, and made a refugee claim at the airport. He fears returning to Georgia because of his Ossetian ethnicity and he believes that state protection is not available to him. [9] The Appellant's RPD hearing was held on June 16, 2016, and in a decision of July 11, 2016, the Appellant was found not to be a Convention refugee nor a person in need of protection. [10] The RPD's decision was appealed to the RAD, and in a decision of November 8, 2016, the RAD dismissed the appeal and upheld the RPD's decision. [11] The RPD's decision was appealed to the Federal Court and on June 6, 2017. The Hon. Mdm. Justice Strickland allowed the application for judicial review and referred the matter back to the RAD for re-determination by a different member. Memorandum of Appeal [12] Did the RPD err by ignoring relevant evidence in finding that there is no objective basis for the Appellant's fear? [13] Did the RPD err by making unreasonable plausibility findings in concluding that the incidents experienced by the Appellant were not as a result of his Ossetian ethnicity? [14] Did the RPD err in finding that state protection is available to the Appellant? ROLE OF THE RAD [15] The Appellant supports the provisions outlined in the decision of the Federal Court of Appeal (FCA) in Huruglica,2 which provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of the first-level administrative tribunal. [16] The FCA stated that, with respect to findings of fact (and mixed fact and law), which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to paragraph 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD's decision without hearing the evidence presented before the RPD. For questions of fact, mixed fact and law, and law, I have applied the standard of correctness, as per Huruglica. In assessing issues involving credibility of oral testimony, I have applied the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making a particular finding, as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). It further indicates that, although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [17] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. CREDIBILITY [18] The RPD did not find any credibility issues in its decision. State Protection The RAD finds that state protection is the determinative issue in this claim and will address this issue in its decision. The RPD Decision. [19] The RPD explained its decision at great lengths, referencing much documentation from both the National Documentation Package (NDP) and documents submitted by the Appellant. The RPD found that the Appellant was not persecuted because of his Ossetian cultural identity. The RPD reasoned that the Appellant is well-educated, and had no difficulty finding housing and was able to find employment. [20] The RPD referred to documentation in stating that Georgia is a democratic country and the government is accountable to Parliament, and there is no evidence of a complete state breakdown.3 The RPD also outlined, quoting the NDP documentation,4 the structure and responsibilities of the police. [21] The RPD found that the police assisted the Appellant when he was attacked in public while celebrating an Ossetian holiday. After being interviewed by the police at the hospital, he visited them after his release. He discovered that the incident was still under investigation but made no further follow-ups. As a result, the RPD found that the police were willing to assist him, and that they were investigating the complaint. [22] In regards to the Appellant being attacked by a customer, the RPD found that the police arrived and broke up the fight within 30 seconds, according to testimony. The RPD found that the Appellant was protected by the police officers; given their intervention during the attack. As a result, the RPD found that the Appellant had not provided clear and convincing evidence of the state's inability to protect him. The Appellant's Submissions [23] The Appellant, referring to documentation, attempted to rebut the RPD's findings regarding Ossetian's being persecuted in Georgia. [24] The Appellant submits that the RPD's findings that the two incidents, "may have been based on the claimant's ethnicity', but both of them, 'were handled appropriately by the police'."5 Is not reasonable, as the Appellant indicated that the incident was racially motivated, and this is corroborated by the statement of his friend Ioseb Togoshvili.6 [25] In regards to the incidents in May 2013 during Benisoba, and April 2014, the Appellant submits that case law indicates that the victim of a crime is not required to follow up as a condition precedent to rebutting state protection.7 The Appellant further submits that the RPD cannot refer to other alternate sources of protection without a measurement of their efficacy. He submits that the police were unwilling to assist him, and he was not under an obligation to follow up or pursue his complaints to a higher authority. [26] Referring to Federal jurisprudence8 he submits that the RPD was obligated to find where Georgia fell on the, "democracy spectrum." He further submits, referring to the US Department of State Report, item 2.1, referenced earlier, that there are significant human rights issues in Georgia during the past year. The RAD's Findings [27] The RPD reviewed the documentation regarding the alleged persecution of Ossetian's in Georgia, and finds that the majority of the documentation is dated and is not determinative. [28] To rebut the presumption of state protection, a refugee claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens.9 A refugee claimant who alleges that state protection is inadequate must persuade the Board that the evidence establishes that the state protection is, in fact, inadequate. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that state protection is inadequate.10 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.11 A refugee claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.12 Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection.13 [29] Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the refugee claimant to approach the state for protection in situations where state protection might be reasonably forthcoming.14 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.15 [30] The refugee 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 the refugee claimant must have done to exhaust all courses of action open to them.16 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 recourses available to them domestically before claiming refugee status.17 [31] Local failures by authorities to provide protection do not mean that the state as a whole fails to protect its citizens, unless the failures form part of a broader pattern of the state's inability or refusal to provide protection.18 No government is expected to guarantee perfect protection to all of its citizens at all times, and the fact that a state is not always successful in protecting its citizens is not enough to justify a claim, especially where a state is in effective control of its territory, has military, police and civil authorities in place and is making serious efforts to protect its citizens.19 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.20 [32] According to the documentary evidence, Georgia is a democratic country, "[t]he constitution of Georgia provides for an executive branch that reports to the prime minister, a unicameral parliament, and a separate judiciary. The government is accountable to parliament. The president is the head of state and commander in chief."21 [33] The Ministry of Internal Affairs has primary responsibility for law enforcement and controls the police force. While there are some reports of security forces committing abuses with impunity, the overall reports are that the security forces are generally considered effective and operate within the confines of the law.22 The public defender documented cases when use of force by police exceeded permissible limits. There were also government investigations into reports of police abuses against protesters.23 Reports of police abuse and misconduct are managed by the prosecutor general's office. The fact that state protection is not perfect does not constitute clear and convincing proof of the state's inability to protect citizens, since no state can guarantee the protection of all its citizens at all times. [34] In rebutting the presumption, an Appellant must show he or she has taken all reasonable steps in the circumstances to seek the protection of the state in the context of the country, the steps taken and the Appellant's interaction with the authorities. It is necessary to examine the nature of the human rights violation, the profile of the alleged abuser, the efforts the Appellant took to seek state protection, the response of the authorities and the available documentary evidence. [35] In considering the Appellant's circumstances of the two incidents referred to above, the RPD finds that the police did respond in both instances. The RPD rejects the RPD's speculative findings regarding the causes of the incidents as well as others. However, the determinative issue is whether the police responded and provide support. In both instances, according to both his Basis of Claim (BOC) narrative, and testimony, the police did provide support. The Appellant's did not follow up after the police told him that the incident was being investigated. The Appellant was found credible, and this response by the police would indicate that the file was still active. No documentation was in evidence regarding the reports or police investigation. [36] In regards to the Appellant's submissions with respect to the United States Department of State report, the following is insightful. According to the European Commission against Racism and Intolerance (ECRI) report, since the adoption of ECRI's third report on Georgia on April 28, 2010, progress has been made in a number of fields:24 In 2012, Article 53 (General Principles of Sentencing) of the Criminal Code of Georgia was amended to introduce racial, religious, national, ethnic, homophobic or transphobic intolerance as aggravating circumstances. This change implemented a recommendation made in ECRI's 2010 report. In 2014, the Georgian Parliament enacted the Law on the Elimination of All Forms of Discrimination. The enumerated grounds of discrimination include race, colour, language, citizenship, origin, religion or belief, national, ethnic or social origin, sexual orientation and gender identity. [37] The same report further states:25 Civil and administrative law provisions The Law on the Elimination of All Forms of Discrimination was adopted on 2 May 2014 and entered into force on 7 May 2014. The purpose of the Law is to eliminate discrimination on the grounds of race, colour, language, sex, age, citizenship, origin, place of birth or residence, property or social status, religion or belief, national, ethnic or social origin, profession, marital status, health, disability, sexual orientation, gender identity and expression, political or other opinions, or other characteristics (Article 1). The law prohibits direct and indirect discrimination (Articles 2.2 and 2.3 respectively). Article 2.7 allows for special measures intended to promote increased levels of de facto equality, which shall not be considered as discrimination. This is in line with ECRI's GPR No. 7, § 5. Furthermore, Article 2.5 prohibits "any action carried out for the purpose of forcing, encouraging, or supporting a person to discriminate against a third person". However, acts of segregation, discrimination by association, and announced intention to discriminate are not mentioned, as recommended in ECRI's GPR No. 7, § 6.9. Article 3 stipulates that the Law shall apply to public organisations and to natural and legal persons in all spheres. This corresponds to ECRI's GPR No. 7, § 7. According to Article 4, any institution, including public authorities, shall be obliged to: "(a) bring its activity, legal acts and internal regulations into conformity with the Law; (b) respond promptly and efficiently to any alleged act of discrimination; (c) if an act of discrimination is confirmed, impose liability on offenders under its control according to the legislation and internal regulations, and ensure that the consequences of discrimination are eliminated". This addresses the recommendation in ECRI's GPR No.7, § 8. However, public institutions are not obliged to ensure that parties to whom they award contracts, loans, grants or other benefits respect and promote a policy of non-discrimination, as recommended in ECRI's GPR No. 7, § 9. The Law fulfils ECRI's recommendation contained in GPR No. 7, § 11.Article 8(2) reverses the burden of proof. Articles 8(3) and 10 of the Law provide for access to the Public Defender, who has the power to hear cases and can monitor the implementation of mutual agreements s/he has brokered between parties. In the absence of an agreement, a victim can claim compensation for moral and material damages for discrimination through the courts. The Public Defender can hear a case and reach a conclusion as to whether someone was the victim of discrimination or not. The Public Defender can make a recommendation as to how to restore the violated equality, but the conclusions and recommendations of the Public Defender are not legally binding and cannot be enforced. In such cases, victims of discrimination still have to bring their case to the courts. These provisions address the recommendation in ECRI's GPR No. 7, §§ 10 and 12, except for the lack of a fast-track option. The law does not mention the provision of free legal aid or an interpreter, if necessary, to plaintiffs wishing to bring their case to a court, as recommended in ECRI's GPR No. 7, § 26. Article 6 of the Law mandates the Public Defender to propose legislative changes to ensure laws comply with the anti-discrimination law. Article 4 obliges public and private institutions to bring their activities, legal acts and internal regulations into conformity with the Law. This addresses the recommendation contained in ECRI's GPR No. 7, §§ 13 and 14. However, there are recommendation in § 15, concerning a specific prohibition of harassment related to one of the enumerated grounds, is not included in the Law. [...] Independent authorities The Public Defender is an independent institution elected by Parliament and has all the powers recommended in ECRI's GPR No. 7, § 24. S/he is authorised to examine complaints from natural and legal persons, as well as to investigate cases on his/her own initiative. The mandate covers the public and private spheres. The Public Defender has the right to receive all necessary evidence from public bodies, including the judiciary, but not from private persons or entities. [footnotes omitted] [38] As stated above, the RAD finds that the determinative issue is whether or not the Appellant has rebutted the presumption of state protection relating to the incidents which allegedly occurred and whether or not the objective evidence supports his allegations. [39] The documentation submitted does not indicate any aggression or violence against Ossetians. The documentary evidence does reference some language discrimination, in that Ossetians are not able to access many services if they do not speak the Georgian language. The Appellant used the services of a Georgian interpreter for the purpose of his RPD hearing [40] In reviewing the recording of the RPD hearing, the RAD finds that given the level of democracy in Georgia, the Appellant has not rebutted the presumption of state protection. According to documentation and testimony, the police were investigating, but the results of the investigation were incomplete because it was ongoing. If the Appellant had followed up and was unhappy with the results of the investigation, he had recourse to other authorities to deal with a decision that he thought was unfair. [41] In reviewing the documentation, the RAD finds that the Appellant is well-educated, has had no difficulty in finding accommodation or housing, and is also been successful in finding employment. The incidents during his employment are not indicative of persecution, rather discrimination. However, according to documentation, he was always able to find other employment. Disposition [42] The RAD confirms the RPD's decision and dismisses the appeal according to paragraph 111(1)(a) of the IRPA. The RAD finds that the Appellant is neither a Convention refugee, nor person in need of protection. (signed) "Robert S. Garner" Robert S. Garner February 22, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit RPD-1, RPD-1, RPD's Record, National Documentation Package (NDP) for Georgia (May 31, 2016), Exhibit 3, item 2.1, "Georgia. Country Reports on Human Rights Practices for 2015," United States. Department of State, April 13, 2016. 4 Ibid., item 10.1, Responses to Information Requests (RIR), GEO105101.E, "Georgia: 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 of access to an individual's residential information elsewhere in Georgia (2014-March 2015)," March 25, 2015. 5 Exhibit P-2, Appellant's Record, Memorandum, at p. 26. 6 Exhibit RPD-1, RPD's Record, at pp. 229-231. 7 Mora v. MCI, 2004 FC 1158. 8 Guerrero Hidalgo v. MCI, 2016 FC 222. 9 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 [Ward]. 10 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C., no. IMM-822-06), O'Reilly, March 26, 2007, 2007 FC 320. Reported: Flores Carrillo v. Canada (Minister of Citizenship and Immigration, [2008] 1 F.C.R. 3 (F.C.); Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 11 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) [Villafranca]. 12 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830 [Camacho]. 13 Rio Ramirez, Leticia Lizet Del v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214, at para 28. 14 Ward, supra, footnote 7. 15 Camacho, supra, footnote 10, at para 10. 16 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 17 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 171, at para 57. 18 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000. Reported: Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 19 Villafranca, supra, footnote 9. 20 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996, at para 19. 21 Exhibit RPD-1, RPD's Record NDP for Georgia (May 31, 2016), Exhibit 3, item 2.1. 22 Ibid. 23 Ibid. 24 Ibid., item 13.2, at p. 9. 25 Ibid., at pp. 12, 13 and 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-10338