TB5-06263

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 : TB5-06263 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 28, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal David P. Yerzy 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 Appellant has not submitted any new evidence in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellant's claim is based on his nationality as an Ossetian. It began in 2008 when the war began and the Appellant was against shooting at Ossetian people. He was then viewed as a traitor by the community, including his wife's family. [4] As a consequence, the Appellant alleges that he was beaten up on the street beginning in 2008 and he required medical intervention. He alleges that although he reported the incident to the police, they refused to help. Between 2008 and 2012, the Appellant alleges that this type of incident occurred on four or five occasions, however on most occasions, he was able to escape. [5] In 2012, there were elections in Georgia, in which the Georgian Dream defeated the UNM party. Out of frustration at their loss, the Appellant alleges that UNM guys beat him up and again he was called a traitor and spy because of his Ossetian background and because he chose not to defend the country. He required medical intervention, and alleges that although he asked the hospital to call the police, they refused. [6] In October 2013, there were presidential elections and the Appellant was attacked on the street. Although he reported the incident to the police, he was told that his sympathies were with Ossetia and not Georgia. He again encountered problems in XXXX XXXX XXXX 2014, and XXXX 2014. He thought about moving to another part of Georgia but he believes that his Ossetian background would follow him everywhere in Georgia. MINISTERIAL INTERVENTION AT THE RPD [7] The Minister intervened at the RPD hearing pursuant to subsection 170(e) of the IRPA and submitted documentation in support of his intervention. These documents included the Appellant's identification documents, port-of-entry notes and basic security screening questions. ROLE OF THE RAD [8] The RAD has taken guidance from the Federal Court in Huruglica1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Did the RPD err by engaging in a selective analysis of the documentary evidence as it regards state protection? * Did the RPD err by requiring the Appellant to show that other Ossetians were similarly persecuted when the panel had already assumed that his allegations of persecution were credible? * Did the RPD come to a perverse conclusion in making a distinction between ineffective protection from police human rights abuses and police unwillingness to open investigations? * Did the RPD err in determining that the threats of the Georgian Dream members to make false allegations to the security services were hollow despite credible evidence that the agents of persecution had acted on their threats in the past and political persecution was a serious problem in Georgia? * Did the RPD fail to consider whether the Appellant was a Convention refugee on the grounds of his perceived political opinion? State protection [9] The RPD examined the documentary evidence and found that Georgia has a sufficient level of democracy and accountability to attract a presumption of state protection. The Appellant was asked why at no time he had escalated his complaints through higher authorities when the front line police officers had failed to assist him. His response was that this would have been futile, since the police act on the whim of whoever is in power. The RPD acknowledged that there was mixed documentation in this regard, however found that the preponderance of the evidence indicated that the General Inspection Department is an effective process and cited 1,686 disciplinary actions against police officials (including dismissals) in 2013, which constituted a two-fold increase over 2012. [10] The RPD also acknowledged the documentary package submitted by the Appellant,2 however this package speaks to crimes against members of the opposition UNM party. Since the Appellant is not accused of such membership, and since Counsel did not direct the RPD's attention to specific evidence in this package that would suggest that avenues of redress would be ineffective, the RPD found this package of little relevance to the RPD. [11] With respect to the evidence that the Appellant would be reported to the "secret police" and they would kidnap him in exchange for a Georgian in South Ossetia, the RPD found no objective basis for fearing that this threat was serious. The RPD had no evidence in front of it that there is even a secret police force in Georgia that engages in this tactic, and therefore, this was, on a balance of probabilities, a hollow threat. [12] Finally, the RPD noted that there is no evidence before it of discrimination or persecution against Ossetians generally in Georgia. It particularly noted two specific documents disclosed by the Appellant on the situation for Ossetians in Georgia, in which a climate of discrimination against Ossetians was not indicated.3 The RPD went on to examine the contents of the US DOS report, in which it is noted that the government provides education in minority languages such as Ossetian, the most serious complaints addressed with respect to the Ossetians being the lack of college entrance examinations in Ossetian and the lack of minority language news. The RPD concluded that the preponderance of the documentary evidence did not reveal a failure by the state to protect Ossetians from racism that they may encounter. As a consequence, the RPD found that according to the Appellant's evidence this was a case revolving around a police failure to initiate an investigation, not a human rights violation by the police. The RPD did not, therefore, accept the Appellant's explanation as to why he did not escalate his investigations by raising issues with higher authorities. This led to the conclusion by the RPD that the Appellant has failed to establish on a balance of probabilities, with clear and convincing evidence, that the Georgian state would not offer him adequate protection if he made efforts to engage the state. [13] It is submitted by the Appellant that the RPD engaged in a selective use of the documentary evidence. It is submitted that the fact that 1686 police officers needed to be disciplined is a clear indication of a fundamental and massive problem within the police and further that this data simply shows that it is possible to file complaints against police inaction. It is argued that this documentation does not speak to the effectiveness or likelihood of obtaining police protection. [14] It is further argued by the Appellant that the RPD erred in paragraph 12 of its Reasons that the evidence regarding persecution of UNM members was irrelevant as it speaks to the fact that the police and judiciary were engaged in human rights abuses and politically motivated prosecutions. Moreover, the documentary evidence, it is submitted, indicates that the Prosecutor's Office was not effective in terms of assisting a person such as the Appellant.4 With respect to the Public Defender as a possible recourse, the Appellant cites5 with respect to "non-binding" recommendations and the lack of a non transparent system to address complaints. [15] The Appellant argues that the U.S. DOS report dated 27 February 2014 indicated the failure to conduct systematic investigations and pursue convictions of all alleged abusers contributed to a culture of impunity, and further with respect to the Public Defender's 2015 report6 "...that frequently occurrences of ill-treatment are not given proper legal qualification..." and "the conduct of professional assessment/investigation is made by the same law enforcement agency, whose representative is suspected of having committed a misconduct/crime." [16] It is submitted that the RPD failed to consider whether the police, once forced to record the complaint, would be willing to protect the Appellant. [17] The Appellant submits that the RPD erred when it found that the 28 News reports regarding the UNM were irrelevant and that this was a mistake of fact. It is argued that these reports show a pattern of abuse directed by the Georgian government towards perceived political opponents. [18] The Appellant argues that there was ample evidence of politically motivated and state sponsored persecution. However, the RPD found in paragraph 17 that the threat was hollow because there was "no objective basis that there is a secret police in Georgia that engages in this tactic". The Appellant argues that there was no need to prove that a special subsection or a particular united would be tasked with persecuting him. It is submitted that the RPD erred when it required the Appellant to identity a specific unit within the police when it found no objective basis for his fear. [19] Since the Appellant's testimony was not challenged, the issue as to whether other Ossetians are also persecuted, it is submitted, is irrelevant. It is submitted that if this is relevant, then the RPD made a veiled credibility finding suggesting that perhaps the Appellant's testimony is not true. RAD'S FINDINGS [20] The determinative issue is state protection. [21] The RAD finds that before reaching its conclusion, the RPD set out the principles of "state protection" as held by the Federal Court. It cited the distinction "unable" and "unwilling" to obtain adequate state protection. In the particular circumstances of this claim, the RPD properly noted that Georgia is a functioning democracy which enjoyed its first democratic transfer of power in 2012 and although citing reports of some abuses, found that there is a sufficient level of democracy and accountability to attract a presumption of state protection. [22] In addition to the principles as held by the Federal Court, the RAD also takes guidance from the following: A claimant from a democratic country 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. (Hinzman,7 Satiacum8) A claimant must show that they have taken all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken and the claimant's interactions with the authorities. (Peralta9) Where there is evidence that the government is taking steps to protect the target group, in the absence of evidence to the contrary, it must be presumed that these steps will be effective. (Manorath10) Not only is protection offered by the police to be considered but also other state agencies, e.g, those that investigate police conduct. (Flores Carrillo,11 Sanchez Gutierrez,12 Hernandez Gonzalez,13 Ramirez Albor,14 Hall,15 Suhatski,16 Balogh17) Some Federal Court decisions have expressed reservations in this regard, however, stating that it is the police force that has the primary responsibility to protect a nation's citizens and, unless there is evidence to the contrary, alternative institutions do not constitute avenues of protection per se. (Flores Zepeda,18 Barajas,19 Lopez Gonzalez,20 Katinszki21) [23] The RAD is also guided by the recent decision in Mudrak,22 in which Justice Annis states: ...I think that extensive and substantial legislation and other measures being undertaken should be treated as evidence supporting the democratic foundations of the country, thereby enhancing the presumption of adequate state protection. ...I believe it to be incorrect to impose on a government an obligation to demonstrate the "operational adequacy" of its recently instituted protection measures. This threshold is, realistically, not subject to proof, even if the legislation is having a positive effect. [24] The RAD accepts, as did the RPD, that it was apparent throughout the Appellant's testimony that it was his ethnicity, namely Ossetian, which allegedly led to his problems. Although counsel for the Appellant argues that it was his perceived political opposition, the RAD finds that the audio recording focused solely on his claim being based on his ethnicity. [25] 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. [26] According to the documentary evidence Georgia is a democratic country, and the constitution of Georgia provides for an executive branch that reports to the prime minister, an unicameral parliament, and a separate judiciary. The government is accountable to parliament. The president is the head of state and commander-in-chief.23 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.24 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.25 Reports of police abuse and misconduct are managed by the Prosecutor General's Office. Accordingly, prosecutors must investigate the use of force by police when a detainee sustains injuries during an arrest. The law requires the office to open an investigation when it receives information about a possible violation, even if from an anonymous source. If prosecutors conclude after investigation that charges are not warranted, their decision can be appealed to a higher level within the office. In many cases the Prosecutor General's Office continued investigations indefinitely without issuing any findings. In cases that were completed, the office often concluded the use of force by police was reasonable or there was insufficient evidence to bring criminal charges against individual officers. The Human Rights Protection Unit in the Office of the Prosecutor General issued regular updates on the status of cases, trials and investigations of human rights violations. The Prosecutor's Office and the Ministry of Internal Affairs' General Inspector investigate all security force killings and evaluate whether they occurred in the line of duty or were otherwise justifiable."26 [27] While the letter of the Ombudsman maintains that there is ethnical aggression in Georgia, the documentary evidence is silent on any ethnical 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, some services include, education and television programing. However, this is the only tension that is addressed in the documentary evidence with relation to Ossetians. Moreover, the Department of State report comments that the government is working toward introducing second languages in the schools and other institutions to resolve this problem. Aside from the language discrimination, the Department of State report under the heading of "National/Racial and Ethnic Minorities" does not mention any other tension between Ossetians and Georgians. The NDP under section thirteen, Nationality, Ethnicity and Race does not include any report which supports a finding that Ossetians face ethnic discrimination or violence. [28] According to the documentary evidence, during the last year "the police academy provided basic training for 279 new police officers, including 87 patrol officers, 52 district officers, and 140 border police. During the year the Ministry of Internal Affairs extended the duration of its basic training courses, including extending the patrol officer's training course from 12 weeks to 20 weeks and the Border Police officer's training course from six weeks to 14 weeks. The curriculum included human rights training and covered the legal basis for the use of force, proper crowd control, hate-crime investigation, use of negotiations for managing critical situations with the goal of employing lawful force as a last resort, identification of trafficking cases and police ethics. The police academy also conducted specialized training on human rights in co-operation with international partners."27 Based on this, the RAD finds the police are provided with the skills and manpower to conduct proper investigations. [29] After reviewing the audio recording of the proceedings, the RAD finds that a number of the responses by the Appellant to the Minister are compelling. [30] Firstly, it was established that the Appellant is only 1/4 Ossetian, by virtue of his mother being 1/2 Ossetian through her father. Moreover, the RAD finds that it was abundantly clear that the Appellant's alleged problems were due to his Ossetian ethnicity. [31] With respect to the evidence regarding the "secret police" seeking the Appellant in exchange for Georgian prisoners, the RAD finds that there was insufficient persuasive evidence to suggest that the Appellant had a profile that would result in his involvement in such a scheme. Moreover, when asked by the Minister if there is evidence of this occurring in 2015, as opposed to following the war, the Appellant acknowledged that he did not know. Furthermore, the RAD finds that is no objective basis that a secret police force in Georgia engages in this tactic. [32] Finally, given the level of democracy in Georgia, and the aforementioned agencies, to which the Appellant could have sought help, the RAD finds that the Appellant has not rebutted the presumption of state protection. [33] The RAD concurs with the RPD that the Appellant provided no reasonable explanation for not approaching the agencies to complain about the lack of interest on the part of the police. When one applies the principles with respect to the willingness on the part of the Appellant to pursue avenues of redress, the RAD finds that it was incumbent upon the Appellant to at least attempt to reach out to agencies who could provide recourse to the Appellant in light of his allegations that the police did not assist him. [34] The RAD further finds that it must consider the well-foundedness of the Appellant's fears. In this regard, the RAD concurs with the RPD that the preponderance of the documentary evidence does not indicate persecution against Ossetians generally in Georgia. [35] Accordingly, after conducting an independent assessment of the entire record of the proceedings, the RAD concurs with the RPD that the Appellant has failed to establish, on a balance of probabilities, with clear and convincing evidence that the Georgian state would not offer him adequate protection if he had made efforts to engage the state. [36] In light of the foregoing, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [37] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara September 28, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit RPD-1, RPD Record, pp. 128-168. 3 Exhibit RPD-1, RPD Record, pp. 166-178. 4 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) Georgia, 27 June 2014, item 2.1. 5 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) Georgia, 27 June 2014, items 2.1 and 10.2 6 Ibid., item 2.1. 7 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, para. 46. 8 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 176. 9 Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002; 2002 FCT 989. 10 Manorath, Rahonie v. M.C.I. (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. 11 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), para. 34. 12 Sanchez Gutierrez, Alejandro v. M.C.I. (F.C., no. IMM-237-08), Mactavish, August 26, 2008; 2008 FC 971. 13 Hernandez Gonzalez, Karla Del Carmen v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008; 2008 FC 1259. 14 Ramirez Albor, David v. M.C.I. (F.C., no. IMM-2359-09), Boivin, December 1, 2009; 2009 FC 1231. 15 Hall, Zita v. M.C.I. (F.C., no. IMM-3705-10), Rennie, March 4, 2010; 2011 FC 261. 16 Suhatski, Gleb v. M.C.I. (F.C., no. IMM-6398-10), O'Reilly, December 5, 2011; 2011 FC 1405. 17 Balogh, Ignac v. M.C.I. (F.C., no. IMM-2912-11), Blanchard, February 15, 2012; 2012 FC 216. 18 Flores Zepeda, Rosario Adriana v. M.C.I. (F.C., no. IMM-3452-07), Tremblay-Lamer, April 16, 2008; 2008 FC 491. Reported: Zepeda v. Canada (Minister of Citizenship and Immigration), [2009] 1 F.C.R. 237 (F.C.). 19 Barajas, Leonardo Macias v. M.C.I. (F.C., no. IMM-2393-09), Russell, January 7, 2010; 2010 FC 21. 20 Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011; 2011 FC 592. The Court noted that, while the existence or non-existence of these agencies formed part of the contextual assessment of the ability of the state to protect its citizens, what was critical to the finding of state protection was the fact that the police responded to the assault when it was reported. 21 Katinszki, Piroska v. M.C.I. (F.C., no. IMM-2520-12), de Montigny, November 15, 2012; 2012 FC 1326. 22 Mudrak, IMM-3582-13 2015 FC 188. 23 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) Georgia, 27 June 2014, item 2.1. 24 Ibid. 25 Ibid. 26 Ibid. 27 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06263