TB8-06135

RAD File / Dossier de la SAR : TB8-06135 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 10, 2019 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Richard M Addinall Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) claims that if returned to Georgia, his country of nationality, he will be persecuted due to his Ossetian ethnicity. His claim for refugee protection was heard by the Refugee Protection Division (RPD) on October 22, 2015 and refused on November 23, 2015 based upon a finding that he lacked credibility and was not Ossetian. [2] A de novo hearing before the RPD was held on February 16, 2018. His claim was again refused on March 2, 2018 on the basis that his fear of persecution did not have an objective basis and that he had not rebutted the presumption of state protection. [3] He now appeals to the Refugee Appeal Division (RAD). DETERMINATION [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), I set aside the decision of the RPD and find the Appellant to be a Convention refugee. The appeal is allowed. FACT AND ALLEGATIONS [5] In March 2004, the Appellant's girlfriend's brothers assaulted him and told him that they would never let their sister marry a "bastard Ossetian." He reported the incident to the police but, upon learning that he was Ossetian, they suggested he made the story up and noted that there were no witnesses. A week later, his attackers assaulted him again and told him that he must leave the area. In June 2004, he relocated within Georgia. As a result, he had to leave his job. [6] On August 19, 2008, the Appellant was assaulted by people who sought revenge for a relative who had died in the war between Russia and Georgia. He was hospitalized for two days. He did not contact the police because he believed they were hostile towards Ossetians. [7] In May 2010, a customer at a car wash where he worked yelled at the Appellant and assaulted him because he was Ossetian. When the owner of the car wash learned what had happened, he fired the Appellant, telling the Appellant he could not stand Ossetians. [8] In May 2014, the Appellant was assaulted by three men who knew he was Ossetian and wanted to humiliate him. He recognized one of his attackers as XXXX XXXX. He needed hospitalization as a result of the attack and the police questioned him at the hospital. The police told him that they would be in touch; however, they did not contact him. About a week after the assault, the Appellant inquired about his complaint and was told that the case was closed because there was not enough evidence. [9] In December 2014, XXXX XXXX came to his home and asked how he had dared to report the May assault to the police. He then hit the Appellant on the head with a heavy piece of wood. Once again, the Appellant was hospitalized and once again the police came to the hospital to interview him. The police said they would open a file and be in touch. After two weeks elapsed without word from the police, the Appellant's father reported the matter to the Office of the Prosecutor. In a subsequent letter form the Chief Prosecutor, the Appellant was advised that the case had been closed due to "improper evidence" and a lack of witnesses. [10] In XXXX 2015, the Appellant moved to Tianeti. However, he had arguments with his neighbours about his ethnicity there. [11] In XXXX 2015, he moved to Bakuriani, where he stayed with a friend at her guest house. One evening in June 2015, a drunken guest at the guest house learned that the Appellant was Ossetian and assaulted him. The next day he went to the police but, because the guest was a high ranking police officer, the police told the Appellant that he was crazy to try to take action against him. [12] After this incident, the Appellant retained the services of a smuggler, who obtained a false passport for the Appellant. [13] The Appellant left Georgia on XXXX XXXX, 2015. During a three-week period, he visited Turkey, Brazil and Guyana using a fraudulent Czech passport, which he destroyed before arriving in Canada. He arrived in Canada on XXXX XXXX, 2015 and made a refugee claim at the airport. DETERMINATIVE ISSUES [14] The determinative issues in this case are whether the Appellant's fear had an objective basis and whether he has rebutted the presumption of state protection in Georgia. STANDARD OF REVIEW [15] In my independent review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in respect of its assessment of any of the evidence; as such, I will not apply a standard of deference to the RPD as regards any of its findings.2 ANALYSIS [16] The RPD found that the Appellant's testimony was "consistent in all respects"3 and that his documents were reliable. Nevertheless, it held that the Appellant was neither a Convention refugee nor a person in need of protection because i) "[his] experiences do not establish that he has good grounds to fear persecution in Georgia";4 and ii) he had not rebutted the presumption of state protection. [17] The Appellant argues that these findings were in error. 1. Is there a serious possibility the Appellant will be persecuted if returned to Georgia? a) The treatment of Ossetians generally [18] The RPD considered the treatment of Ossetians in Georgia, citing passages from reports in the objective documentation. While noting that there is discrimination against Ossetians, it appeared to find that there was not, generally speaking, a serious possibility that Ossetians will be persecuted or otherwise harmed in Georgia. [19] The Appellant argues that the RPD's analysis of the objective documentation was in error because the RPD failed to explain how the quoted passages undermine the objective basis for his claim. Second, he refers to items from the objective documentation that show that ethnic and religious minorities and, in one case Southern Ossetians, living in Georgia are under threat and states that it was an error of the RPD not to have made reference to this evidence. [20] As to the Appellant's argument that the RPD failed to link the passages it quoted to its conclusion, I disagree. While the RPD might have been more explicit, it is clear that the mixed views of the treatment of Ossetians in Georgia led it to its finding regarding the objective basis for this claim. [21] I also disagree with the Appellant that the RPD was selective in its analysis of the objective documentation. I have reviewed the documentation referred to by the RPD, referred to by the Appellant and more generally. I note that much of the documentation relied upon by the Appellant is of limited relevance as it pertains to ethnic minorities generally, rather than to Ossetians specifically. [22] It is clear to me that the treatment of Ossetians is mixed-or at least the expert analysis of such treatment has led to different conclusions. As noted by the RPD, one organization's representative stated that mistreatment of Ossetians by the Georgian government has caused them to migrate and that discrimination against them on ethnic grounds and hate speech against them is widespread in Georgia.5 Other organizations have indicated that there have been no cases of oppression of Ossetians in the aftermath of the 2008 conflict, that their resettlement to North Ossetia is unconnected to the 2008 hostilities and that they are "generally better integrated into Georgian society than any other ethnic group".6 [23] I find that there is not a serious possibility that an Ossetian in Georgia will be subject to persecution; nor, on a balance of probabilities, will an Ossetian be subjected to harm as described in subsection 97(1). b) The past treatment of the Appellant [24] The RPD relied on the test regarding when discrimination may amount to persecution as set out in the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the Refugee Convention:7 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.... Having set out this test, the RPD appeared to consider whether the Appellant's past discriminatory treatment amounted to persecution. It found that there was no evidence that: i) he had been denied an education; ii) he had "experienced any measures amounting to persecution based on his race";8 iii) he had been discriminated against in employment; or, iv) his parents (who live in Georgia) had good grounds to fear persecution. [25] The Appellant argues that whether or not there is evidence that his parents feared persecution is irrelevant; it falls to the RPD to consider the Appellant's circumstances, not those of his family. i) RPD's finding regarding discrimination in education [26] The RPD's decision to discuss education would appear to be based on the fact that discrimination in education was among the examples listed by the UNHCR in the paragraph quoted by the RPD. The elements listed by the UNHCR are, of course, examples only. That the Appellant has not claimed to have been discriminated against in relation to his education is not relevant to the issue of whether the discrimination he suffered amounted to persecution, if other instances of discrimination of similar consequence exist. ii) RPD's finding that there was no evidence that "he had experienced any measures amounting to persecution based on his race" [27] The finding is not supported by the RPD in the paragraph in which the statement is made. To the extent the finding was made based on the Appellant's claim to have been discriminated against in employment (considered by the RPD later in its Decision), that analysis is considered immediately below. If the finding was made due to the RPD's view that the assaults against the Appellant were not persecutory in nature, this is unsupported. The RPD accepted the Appellant's evidence regarding these discriminatory assaults-three of which led to his hospitalization-and provided no reasoning as to why those attacks could not amount to persecution. iii) RPD's finding regarding discrimination in employment [28] The RPD noted that the Appellant claimed to have had difficulties finding employment in Georgia after he moved to Tianeti. However, relying on the evidence, it held that he had been employed at elsewhere in Georgia and that there was no evidence that he had been prevented from obtaining employment due to his ethnicity. The RPD went on to find: ... I cannot conclude that having been dismissed from [XXXX XXXX XXXX XXXX XXXX XXXX in 20109] is an indication that the claimant has good grounds to fear measures amounting to persecution for reasons of his race, even if I accept as reliable the testimony that, in that particular instance, the key issue was one of discrimination.10 [29] The RPD's finding regarding rejecting the Appellant's claim to have had difficulty finding work in Tianeti is a credibility finding. The fact that he had been employed elsewhere in Georgia and that he did not provide evidence showing that his ethnicity had prevented him from obtaining employment-exactly what sort of documentation the RPD envisaged is not made clear-is not, to my mind, a sufficient basis to find his evidence that he was discriminated against in relation to employment in Tianeti not to be true. Similarly, the RPD's comment that "even if [it] accept[s]" his evidence to be true, shows a scepticism about the Appellant's credibility that is incompatible with its earlier finding that his testimony and documentary evidence are to be accepted. Finally, as to the finding that the discrimination in relation to the car wash job does not amount to persecution, I am of the view that a finding as to whether the Appellant has experienced discrimination amounting to persecution is best made on a cumulative basis. I will do this below. iv) The lack of evidence that his parents have good grounds to fear persecution [30] As the Appellant argues, the RPD's finding regarding the lack of evidence to show that his parents have grounds to fear persecution in Georgia based on their race is irrelevant. The task of the RPD is to assess the Appellant's situation; not the situations of his parents. Even if it is the case that the Appellant's parents are not suffering from discrimination or persecution in Georgia-something that ought not to be surmised in the absence of evidence-there may be any number of reasons why this is so. v) Conclusion on the Appellant's past treatment [31] I find that the Appellant was discriminated against in relation to employment (in Tianeti and in relation to his job at the XXXX XXXX). In addition, he was subject to seven attacks between 2004 and 2016, all of which were due to his Ossetian ethnicity. Moreover, he was subject to a more general societal discrimination (arguments with his neighbours based on his ethnicity). Having regard to the passage from the UNHCR-as adopted by the Federal Court in Horvath11-I find that the discrimination against the Appellant, when taken collectively, was of a substantially prejudicial nature and that, consequently, it amounted to persecution. I find further that the physical attacks against the Appellant, of themselves, amounted to persecution. c) The future treatment of the Appellant [32] While a claimant's past treatment in a country provides valuable evidence, the real question-whether there is a serious possibility of persecution upon the Appellant's return-requires a forward-facing analysis. [33] Based on the Appellant's profile-his limited education, the attacks against him, his difficulty finding and maintaining work, and the overt nature of his Ossetian ethnicity (Georgians are able to recognise that he does not speak Georgian fluently)-coupled with the potential for discriminatory treatment of Ossetians in Georgia in general as discussed above, I find that there is a serious possibility that he will continue to be persecuted if he is returned to Georgia. [34] I will now turn to the question of whether or not state protection exists in Georgia such that, if subjected to persecution, the Appellant will be protected by the state. 2. State protection [35] The RPD acknowledged the violent attacks against the Appellant based on his Ossetian ethnicity but held that the evidence did not show that the authorities in Georgia made "an admission to the [Appellant] that the national government was unable to protect him, or that the level of protection required is unavailable."12 [36] The Appellant's evidence is that he sought protection from the police on four separate occasions-March 2004, May 2014, December 2014, and June 2015-all without any charges being laid. He cites Federal Court jurisprudence for the principles that an assessment of state protection requires an examination of the particular claimant's unique circumstances, something, he argues, the RPD failed to do; that state protection must "actually be sufficiently effective"; that his failure to make a complaint is not fatal to his claim when police protection has been unsuccessfully sought; that the police force is the main institution mandated to protect the citizens; and, that he was not expected to have approached the state authorities at all levels in order to rebut the presumption of state protection given that physical assaults took place. In short, he argues that he rebutted the presumption of state protection based on his experiences with the police. How strong is the democracy in Georgia? [37] The Federal Court of Appeal case of Kadenko stands for the proposition that: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.13 [38] While Georgia is indeed a democracy, the National Documentation Package (NDP) makes it clear that it is not without shortcomings.14 In view of this, I find that the presumption that the Appellant has to rebut, while "strong," is not as strong as it is in certain, more established democratic states. Has the Appellant exhausted the available courses of action? [39] As discussed in greater detail above, the Appellant was subject to the following seven attacks between March 2004 and June 2015 with the following interaction with the authorities (if any): 1. An attack by his girlfriend's brothers in March 2004; the police were notified but they suggested the Appellant made it up and noted that there were no witnesses; 2. A follow-up attack by his girlfriend's brothers in or about March 2004 (i.e. about a week after the first attack); not reported to the authorities; 3. An assault in August 2008; Appellant did not contact the police due to his perception that they would be hostile to Ossetians; 4. An attack in May 2010 at a XXXX; not reported; 5. An attack in May 2014; a complaint filed with the police; the Appellant followed up but was told the matter was closed due to a lack of evidence; 6. An attack in December 2014; he made a complaint to the police who said they would be in touch but were not; his father followed up by reporting to the Office of the Prosecutor after two weeks; a letter from the Chief Prosecutor stated that the case was closed due to "improper evidence" and a "lack of witnesses"; 7. An attack in June 2015 at a guest house; reported to the police but they said they would not pursue it because the attacker was an important police officer. As is clear from the summary, only the attacks listed at items 1, 5, 6 and 7 were reported to the police. I will consider those attacks in my analysis of state protection.15 Attack of March 2004 [40] The RPD, while acknowledging the discrimination and assault associated with the March 2004 incident, held that the Appellant could not claim to have made any reasonable efforts at seeking the protection of the police, even when he believed that their efforts and their conclusion of no supporting evidence was unacceptable, or because, in his view, the attitude of the police was triggered by their knowledge that he was Ossetian. He failed in his onus.16 The RPD does not explain on what basis the Appellant's evidence is unreasonable. While it is true that where there were no witnesses the prosecution of a case may be more difficult, in this case the Appellant knew his attackers: they were his girlfriend's brothers. Moreover, the fact that the police were hostile to him-even going so far as to suggest that he made up the attack-suggests to me that in this instance state protection was not available to the Appellant. Attack of May 2014 [41] The RPD dealt with the attack in May 2014 and the attack in December 2014 together. It held that "in other incidents of the year 2014...the evidence is that the police were involved and they interviewed the claimant."17 It held that the fact that the police concluded that the cases were closed on the basis of not enough evidence, was not an indication of lack of efforts on their part. It also noted that the Appellant had not testified "that he had provided any help in the prosecution of the matter." [42] In view of the Appellant's previous contacts with the police, I am inclined to find that the police finding that there was not enough evidence is indicative of a lack of state protection in relation to the May 2014 attack. It will be recalled that the Appellant knew one of his attackers; in view of this, it seems odd that the case would be closed due to a lack of evidence. I believe, on a balance of probabilities, that the reaction of the police-including its failure to be in touch with the Appellant, as promised-is indicative of inaction. As to the RPD's comment that the Appellant had failed to testify that he had helped the prosecution, I find that this is misplaced. There is no obligation on a person seeking the assistance of the police to provide evidence of his or her having provided assistance to them. Attack of December 2014 [43] As noted, the RPD considers its reasoning in relation to the May 2014 attack to apply to the attack in December 2014. Once again, I disagree with the RPD. Here again, the police offered to keep in touch but did not. Here again, despite the Appellant knowing his attacker, no arrest was made. Finally, the Appellant's father, when faced with inaction from the police, took the additional step of contacting the Office of the Prosecutor. The matter was not pursued by that Office due to a lack of evidence and a finding that there was "improper evidence"-a concept that is not clarified by the Office. I find that the lack of action in the face of this very serious attack (the Appellant suffered a serious concussion and needed hospitalization), indicates that, on a balance of probabilities, the police failed to take the Appellant's complaint seriously and, accordingly, failed to provide state protection. Attack of June 2016 [44] The RPD did not consider this attack in its analysis of state protection. Given that the reason given by the police for not pursuing the matter was because of their desire to protect a senior officer, I find, on a balance of probabilities, that there was a lack of state protection in relation to this attack. Conclusion on state protection [45] Having regard to the strength of the democracy in Georgia, coupled with the Appellant's past experience when confronted with abuse based on his ethnicity, I find, on a balance of probabilities, that state protection would not be available to him in Georgia. CONCLUSION [46] I find that there is a serious possibility that the Appellant will be persecuted in Georgia based on his ethnicity as an Ossetian. I do not find that the state will provide protection anywhere in the country and, as such, do not find there to be an adequate internal flight alternative in Georgia. [47] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), I set aside the decision of the RPD and find the Appellant to be a Convention refugee. The appeal is allowed. (signed) "James Sloan" James Sloan June 10, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See Rosa del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317 at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278 at paras 19-21. 3 Exhibit RPD-1, RPD Record, at p. 7, Reasons and Decision, at para 20. 4 Exhibit RPD-1, RPD Record, at p. 10, Reasons and Decision, at para 31. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Georgia (May 31, 2017), Item 13.4, at p. 4. 6 Ibid., at pp. 3-4. 7 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reissued: Geneva, December 2011. 8 Exhibit RPD-1, RPD Record, at p. 10, Reasons and Decision, at para 31. 9 The RPD made reference to the Appellant being dismissed from the XXXX in 2009 (Exhibit RPD-1, RPD Record, at p. 10, Reasons and Decision, at para 34). In the Appellant's Basis of Claim narrative, he stated that he was dismissed from his job at the XXXX after an incident in May 2010 (Exhibit RPD-1, RPD Record, Exhibit 2, at p. 24, Basis of Claim narrative, at p. 2.) 10 Exhibit RPD-1, RPD Record, at p. 11, Reasons and Decision, at para 36. 11 Horvath, Judit v. M.C.I. (F.C., no. IMM-3263-13), Gleason, April 1, 2014, 2014 FC 313, at para 23. 12 Exhibit RPD-1, RPD Record, at p. 8, Reasons and Decision, at para 26. 13 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: M.C.I. v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.); 1996 CanLII 3981. The Federal Court of Appeal relied on M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171, (F.C.A.), at p. 176, which was approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, 1993 CanLII 105 (SCC), at p. 725. 14 In this regard, see NDP for Georgia (May 31, 2017), items 2.3 and 2.9, which outline problems with the judicial and political corruption. It is clear, on the other hand, that significant efforts were made to address petty corruption since 2004 and it has become "a regional leader" which is "ranked even ahead of a number of states with more consolidated democracies" in relation to corruption. Nepotism remains a problem in Georgia. (Item 2.3, p. 12). Since 2012, Freedom House has rated the level of corruption in Georgia as 4.5 out of 7 (with 7 being the most favourable score). (Item 2.3, at p. 1). Georgia's overall "Democracy Score" from Freedom House has ranged between 4.64 and 4.93 between 2008 and 2017. (Item 2.3, at p. 1) "Except in the two breakaway territories, Abkhazia and South Ossetia, the state's monopoly on the use of force is secure in Georgia." (NDP for Georgia (May 31, 2017, item 4.4, at p. 1..) 15 As noted, the Appellant argues that his failure to make a police complaint is not fatal to his claim when police protection has been unsuccessfully sought. Because of my findings, I need not address this argument. 16 Exhibit RPD-1, RPD Record, at p. 10, Reasons and Decision, at para 32. 17 Ibid., at para 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06135 RAD.25.02 (April 04, 2019) Disponible en français 14 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.25.02 (April 04, 2019) Disponible en français