TB5-07887

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 : TB5-07887 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 November 10, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard M. Addinall Barrister and Solicitor 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), a citizen of Georgia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his claim and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a Convention refugee. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged in his initial Basis of Claim (BOC)1 form narrative that he was persecuted by members of the Georgian Dream party (GD) and high ranking officials of the Georgian government, the owners of the Green House, and the director of the Sakartvelos Nergebi Company. He provided 12 dates on which harm or threats occurred and also the names of those responsible for the harm and threats. He further alleged the reason for the harm or threats was his political activity and his position in the XXXX XXXX Company. He alleged as well that all members of the United National Movement (UNM) are in a similar situation. [4] The Appellant also alleged that he approached the police after every incident and that all the investigations were closed because of lack of evidence. He approached the Prosecutor's office as well but was not helped. Subsequently, he sought the assistance of the Public Defender. [5] On XXXX XXXX, 2014, he moved to a friend's house in XXXX. On XXXX XXXX, 2015 the police found him in a supermarket in XXXX but he escaped. He then went into hiding in XXXX XXXX located in the mountains in XXXX. [6] The Appellant's mother contacted a friend in Toronto who told him to come. He left Georgia after obtaining a Canadian visa. [7] The Appellant also provided a description of the situation for UNM members after the party lost power in the 2013 elections. Numerous members of the outgoing government were arrested or interrogated for abuse of power and corruption by the new GD government. In addition, owners of the XXXX XXXX were arrested for illegal entrepreneurial activity and embezzlement of public funds. [8] The Appellant provided, in addition, a six page detailed addendum or new BOC narrative,2 prepared on May 30, 2015, approximately two weeks before the hearing. [9] This document notes that the Appellant worked as a XXXX in the XXXX XXXX. The Appellant also indicates he "...became the substitute of the XXXX of the Youth Wing of the XXXX XXXX"3 for the UNM. [10] The Appellant alleged various bribes, threats of physical attack and an abduction, beating, and death threats. He and a friend were also subject to a brutal attack. There were three hospitalizations as a result of these attacks. [11] Charges were made against members of the Appellant's party and of his firm (XXXX XXXX) regarding allegations of corruption and embezzlement of public funds. The Appellant received a summons from the Prosecutor's office for questioning. This included an investigation concerning the former mayor of XXXX. Subsequently, he received another summons. [12] The Appellant was detained by police on XXXX XXXX, 2014, questioned for approximately four hours, and pressed to cooperate in regard to charges against the former Mayor of XXXX. He agreed; but after his release, he conspired with the former mayor not to assist the police. [13] Subsequently, he was attacked by a group of people, beaten and stabbed. When he left the hospital he approached the Public Defender but received no help. He then went into hiding and decided to leave Georgia. [14] An agent facilitated his acquisition of a Canadian visa. The agent told him he would have to obtain other visas first. On XXXX XXXX, 2014, he obtained a Schengen visa and he was told to go to Israel for one to two days. He flew to Israel on XXXX XXXX, 2014 and returned to Georgia on XXXX XXXX, 2014, where he returned to hiding in XXXX. In XXXX 2014 he went to the UK visa centre to sign papers. [15] On XXXX XXXX, 2014, police found him in a supermarket in XXXX XXXX He escaped and went into hiding in a monastery. [16] On XXXX XXXX, 2014, he was told by the agent to go to the Canadian visa centre to pick up his passport. He did not have enough money to pay for the plane ticket after paying the agent so he waited until February 2015, while friends collected the money. He left Georgia for Canada on XXXX XXXX XXXX 2015. The Issues [17] The panel indicated the determinative issue in this case is credibility. [18] The Appellant submits the issues in this appeal are: whether the RPD erred in fact and law in making negative inferences concerning his credibility; and whether the RPD ignored or misunderstood evidence in making its credibility findings, and breached the rules of procedural fairness?4 The Role of the RAD [19] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [20] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [21] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.5 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [22] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [23] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [24] The RAD notes the Appellant submits a brief analysis of the standard of review and the issue of deference to RPD findings. The RAD further notes the Appellant cites Huruglica as to the role of the RAD and, as noted above, the RAD agrees. Analysis The initial BOC narrative [25] The panel noted that the Appellant's initial BOC narrative gives no details as to what happened to him. It indicated he was persecuted and gives dates and names but does not say what happened. Counsel in the hearing argued the entire space was used for the question and answer, but the panel noted that the BOC form indicates if more space is required additional sheets of paper can be used. The panel further noted that the Appellant was assisted throughout this process by competent counsel. [26] The panel noted that the initial BOC, received on April 16, 2015, contains no details as to what happened to the Appellant. There is no reference to being attacked, to the XXXX XXXX contract, later problems, hospitalization, or going to the police. [27] The Appellant explained he did not know he had to give all the details at that time. The panel rejected the explanation and noted that claimants are meant to provide their story in their BOC in sufficient detail that allows analysis of the claim at that stage. The panel found it was not sufficient to send in a detailed narrative two weeks before the hearing without a valid excuse. The panel found there was none. [28] The panel noted that the Appellant sent in the amended narrative at the same time as the disclosure; the documents that would corroborate his allegations about alleged incidents in Georgia. The panel indicated it was reasonable to expect a narrative of detailed allegations would be submitted before documents arrived from the home country. [29] The panel indicated that the Appellant appeared to have tailored his story to the documents submitted from Georgia. The panel drew a negative inference as to the Appellant's overall credibility from the absence of details as to particular events in Georgia in the initial BOC narrative. [30] The panel further noted that the Appellant indicated he approached the police for help but provides no other information as to when, where, how, or the response. The panel noted that the BOC instructions are clear regarding police and state protection. A claimant is asked to explain in detail who they approached for help, what steps were taken, what happened as a result, and indicate dates, names and places, if possible. The panel noted no dates, names, or places were given in the initial BOC and it rejected the explanation. [31] The Appellant submits that the panel erred in its negative inference based on his submission of a detailed BOC narrative two weeks before the hearing. [32] The Appellant further submits that the RPD rules provide the opportunity to amend a BOC, and the amended BOC was disclosed two weeks before the hearing, in compliance with RPD rules. [33] The Appellant submits as well that the amended BOC did not change the basis for his claim but added details to reasons for his fear. The Appellant submits as well that the original BOC provides names and dates as to the agents of persecution. [34] The Appellant cites Federal Court case law stating the Personal Information Form (PIF or BOC) is meant to be a "brief recitation of the applicant's claim."6 He further cites a Federal Court decision stating that a PIF (BOC) was amended to clarify evidence and conform with other evidence presented and not to raise a claimant's profile and bolster his claim.7 [35] The Appellant also cites the Federal Court decision in Diaz Puentes8 in which the Court stated that "when PIF (BOC) amendments do not change... an applicant's story, but simply provide more detail to information that is already on the record, this alone does not undermine the presumption that the testimony of the witness is true." [36] The Appellant submits that he explained that he thought he just had to answer the questions in the BOC briefly and he was not familiar with the document. The Appellant further submits that his supplementary narrative added more detail to information already provided and did not change the basis of the claim. The Appellant argues that the panel's negative inference is unreasonable. [37] The RAD has reviewed and assessed all of the evidence concerning the initial and supplementary BOC narratives. The RAD notes that the Appellant provided in the initial BOC, a general statement that he was "prosecuted" (The RAD assumes he meant to say "persecuted") by a number of people on a number of dates. The RAD further notes however, as did the panel, that there is no substantive information in this document concerning the nature of the alleged persecution. [38] The RAD notes that the supplementary BOC narrative indicates that the Appellant was physically attacked on three occasions, required hospitalizations, was confronted with bribes, associated with a company contract alleged to be fraudulent, summoned by the Prosecutor's office, summoned by the Ministry of Finance, involved in a fraud case against the former mayor of XXXX, used the services of an agent, and acquired multiple visas in order to leave Georgia. None of this evidence was included in the initial BOC narrative. [39] The RAD finds that the supplementary BOC does not merely provide more details. The RAD further finds that no substantive evidence was included in the initial BOC. The RAD finds as well that it strains credulity that the Appellant would not have indicated in his initial BOC narrative that he was "brutally" attacked, that he was hospitalized, that he was involved in a corruption case, and that he received two summons in this regard. The RAD finds these are not merely additional details; these are the central issues in this claim. [40] The RAD notes as well that the BOC instructions for each section are clear that a claimant is meant to "explain in detail" what happened in regard to their harm and mistreatment. The RAD notes that the Appellant was assisted throughout the process by competent counsel. The RAD further notes that counsel in the hearing explained that the entire space was used for the question and answer, but the BOC instructions clearly indicate that if more space is needed, additional sheets may be added. The RAD finds the Appellant has not provided a credible explanation for the lack of substantive detail in his initial BOC narrative. [41] The RAD notes the panel indicated that the Appellant provided his supplementary narrative at the same time as the documentary evidence that would corroborate his allegations. In this regard, the panel indicated that the Appellant appeared to have tailored his story to the documents submitted from Georgia. The RAD notes that the Appellant makes no submission in this regard. [42] The RAD finds, on the basis of its review of the evidence and on the basis of its analysis above, that it was open to the panel to draw a negative inference as to the Appellant's credibility from the absence of substantive evidence in his initial BOC narrative. The RAD concurs with this finding. Rejection of corroborative documents [43] The Appellant submits that the panel found his corroborative documents are false and that they were generated only for the purpose of supporting a fraudulent refugee claim. The Appellant further submits that this finding is unreasonable. [44] The Appellant submits as well that it is trite law that evidence must be presumed to be true unless there is good reason to disbelieve it. The Appellant notes that he provided documents from official state sources that establish that he sought protection and it was denied. He also provided medical documentation that confirms serious injuries. The Appellant argues it was not open to the panel to give no probative weight to official documents without any analysis or evidence that the documents were not genuine. The Appellant submits that the panel erred in this regard and this is a reviewable error. [45] The Appellant submits as well, it was not open to the panel to give no weight to the documents because it disbelieved his narrative. The Appellant cites in this regard the Federal Court's decision in Kabongo, in which the Court stated "The Board cannot find the applicant's testimony not credible without consideration of relevant corroborative evidence, and then subsequently reject the supporting evidence because of the credibility finding."9 [46] The RAD notes that while the panel provided extensive analysis (noted above and below) that resulted in negative credibility findings concerning central aspects of the Appellant's claim, it failed to specifically consider the substantial documentary evidence provided by the Appellant before finding the documents fraudulent on the basis of the negative credibility findings. The RAD finds that the documentary evidence should have been specifically examined and it does so below. [47] The RAD has reviewed all of this documentation10 which includes the following: * Two documents from the UNM confirming the Appellant's membership in the party; * Six police documents concerning incidents involving the Appellant; * Four witness statements concerning incidents involving the Appellant; * Three medical documents; * Six police documents indicating the cases were terminated because of insufficient evidence; * A summons document from the Prosecutor's office; * A note from the Chief Prosecutor's office concerning the Appellant's complaint that the Prosecutor pressured him to cooperate in regard to a case against the XXXX XXXX because of involvement in a financial transaction that resulted in money being used for political bribes; * A summons from the Ministry of Finances regarding the XXXX XXXX; * A note from the Chief Prosecutor's office regarding the Appellant's complaint that the Ministry of Finance threatened him concerning cooperation in regard to the XXXX XXXX case; * A note from the Chief Prosecutor's office concerning the Appellant's complaint that he was arrested on XXXX XXXX, 2014 and told to cooperate in the case against the former mayor of XXXX XXXX The Appellant indicated that if he did not cooperate he "...would regret this and [he was] slapped in the face";11 * A lawyer's statement regarding the XXXX XXXX case; * A statement from the Ombudsman of Georgia office; * A statement from the person in whose home the Appellant hid in XXXX; * Statements form the Appellant's mother and from his mother's friend in Canada; * Statement from a priest in whose monastery the Appellant hid; * Statements from a friend and from the Appellant's sister. [48] The RAD finds there is no basis to challenge the authenticity of the two letters indicating the Appellant was a member of the UNM. [49] The RAD finds the six police documents concerning incidents involving the Appellant indicate that the police investigated the incidents. These documents also indicate that the police interviewed witnesses who provided evidence as to the incidents. The RAD notes that neither the Appellant nor the witnesses were able to provide evidence regarding the identities of the perpetrators of the attacks. In regard to allegations of attempted bribery and threats associated with the XXXX XXXX case, the Appellant provided no evidence to the police other than his allegations. [50] The RAD finds that no evidence was disclosed to indicate that the police did not do their jobs to the best of their abilities. The RAD further finds that no evidence was disclosed that the police had specific evidence concerning the perpetrators of the attacks on the Appellant that would have facilitated continuing investigations rather than terminating the investigations. The RAD finds that the Appellant has failed to provide clear and convincing evidence that state protection was not available to him in Georgia and that it is not now available to him. [51] The RAD has reviewed the country documentary evidence concerning confrontations between the Georgian Dream and UNM party members associated with elections in 2012 and 2013. A report from The Freedom House has noted that the XXXX XXXXbased International Society for Fair Elections and Democracy (ISFED) indicated that there were a number of violations by Georgian Dream members. It further indicated however, that the number of such cases pales in comparison to the systematic harassment and intimidation of Georgian Dream supporters by the UNM.12 [52] The RAD finds that while the Appellant may well have been involved in violent confrontations that resulted in his injuries, there is insufficient evidence concerning the nature of the confrontations in the context of the intense and sometimes violent competition between members of both the Georgian Dream and UNM parties. The RAD notes the witnesses' statements noted above are made by persons unknown to the RAD or the panel. [53] The RAD notes the medical documents make no mention of the perpetrators of the attacks and one of them indicates the Appellant received his injuries "due to fight". The RAD finds these documents are inconclusive concerning the source and reasons for the Appellant's injuries. [54] The RAD notes that the two summons documents concern the Appellant's association with the XXXX XXXX and the former mayor of XXXX. The RAD has reviewed he country documentary evidence regarding the corruption case against the former mayor and notes his trial is being monitored by the Office for Democratic Institutions and Human Rights (ODIHR). The RAD further notes the ODIHR's participation in monitoring such cases was requested by the Ministry of Foreign Affairs after there were reports that charges were politically motivated.13 The RAD finds the two summons were clearly part of the investigation of misappropriation of funds by the mayor and others. The RAD notes that no evidence was provided that the Appellant himself is a person who is being prosecuted in this regard. [55] The RAD notes the Appellant's complaints to the Chief Prosecutor's office regarding his interviews with the Ministry of Finance and the Prosecutor's office resulted from the two summons concerning the XXXX XXXX XXXX the former mayor of XXXX corruption cases. The Appellant alleges he was pressed to cooperate with the investigation and threatened with prison. The RAD notes the alleged threat of prison was made on XXXX XXXX XXXX 2014, and he was detained by the police on XXXX XXXX, 2014. He indicated the police and then the Prosecutor demanded that he cooperate in regard to the case against the former mayor of XXXX and he was released the same day. The RAD finds that no evince was disclosed indicating the Appellant was at risk of imprisonment after his XXXX XXXX XXXX 2014 interview with officials from the Ministry of Finance. The RAD further notes the Appellant alleged he did not go into hiding until XXXX XXXX, 2014, more than five months after the alleged threat. [56] The RAD notes the lawyer's statement indicates he is representing the defendants in the XXXX XXXX case and also the case against the former mayor of XXXX. The RAD finds the argument in the letter, that the cases are politically motivated, is not made by an independent source. The RAD further notes the letter refers to the prosecution of the Appellant for political reasons. The RAD notes as well that no evidence has been provided by the Appellant that he is being prosecuted in regard to these cases. The evidence provided by the Appellant indicates the prosecution's interest in him is only as a witness. The RAD gives this statement little evidentiary weight. [57] The statement from the Ombudsman's office also refers to the 'prosecution' of the Appellant and in the absence of evidence that he is being prosecuted, this raises a significant doubt regarding the authenticity of this document. [58] The statements from the Appellant's friend in XXXX, the Appellant's mother, the mother's friend in Toronto, the priest, and the Appellant's sister, are from persons unknown to the RAD, or from family members and therefore are not independent sources. [59] The RAD finds, regarding its review and assessment of all of these documents, that the Appellant has not rebutted the presumption of state protection in Georgia. The RAD notes that the documentary evidence provided by the Appellant does not confirm the identity of the alleged agents of persecution or the context in which violent confrontations took place. The RAD further notes that the summons and the interest of the Prosecutor's office and the Ministry of Finance concern the corruption cases against the XXXX XXXX and the former mayor of XXXX, and the Appellant only as a witness. The RAD notes as well that the Appellant might be implicated in these cases but if so, the monitoring of trials of people associated with the UNM by the ODRHI provides a constraint on prosecution for political reasons. [60] The RAD finds that the actions of the Appellant that resulted in the panel's negative credibility findings, noted above and below, in regard to which the RAD concurs, raise a significant doubt concerning the credibility of these documents but are insufficient evidence on which to base a finding that all this documentation is fraudulent. The RAD finds that even if these documents are authentic, they are insufficient evidence on which to base a finding that the Appellant is at serious risk of persecution, or at risk of cruel and unusual treatment or punishment, or that there is a risk to his life or a risk of torture if he were to return to Georgia. Delay in leaving Georgia [61] The panel noted that the Appellant alleged that beginning in XXXX 2012, he was injured by the agents of persecution on a number of occasions; he was abducted, threatened with death, he received concussions, he was stabbed and hospitalized. Despite that, he stayed in Georgia. [62] The panel questioned the Appellant as to why he remained in Georgia until XXXX 2015, given the 2012, 2013 and 2014 events noted in his BOC narrative. The Appellant responded that he thought things might improve for the better or that the authorities would give him protection. The panel found the Appellant failed to give a sufficient reasonable explanation and that this undermined the credibility of his allegations concerning problems in Georgia. [63] The panel noted that the Appellant alleged that he decided to leave Georgia in XXXX 2014. He obtained a Schengen visa on XXXX XXXX, 2014, he travelled to and returned from Israel in late XXXX 2014, he obtained a UK visa on XXXX XXXX, 2014 and also a Canadian visa, and arrived in Canada on or about February 13, 2015. [64] The Appellant was questioned by the panel as to why he did not use these visas to leave Georgia earlier given his fear of persecution. The Appellant explained that the agent did not inform him about the visas and he only found out he had a Netherlands visa when he went to Israel and returned to Georgia. [65] The panel found that it begs belief that a person who truly feared for his life in Georgia would not have made immediate arrangements to leave Georgia, or even go from Israel to the Netherlands. The panel noted that the Appellant had a four year university degree in micro-economics and did not appear to be intellectually limited. The Appellant further explained he did not know if the Netherlands visa was valid or not. The panel rejected the explanation and found the Appellant was evasive on this point. The panel noted that no evidence was provided that any of the visas noted in the BOC narrative were not genuine. [66] The panel cited the Federal Court decision in Rahim14 in which the Court stated that "The time it takes an applicant to leave his or her country of origin can be taken into account in determining whether that person had a subjective fear of persecution." The panel also cited the Federal Court's decision in Gebremichael15 which concerned claimants who remained in their country for a month despite having United States visas. The Court upheld the Board's adverse inference concerning their subjective fear and found the Board's decision to be reasonable and clearly explained. The panel noted as well, the Court stated that delay in fleeing a country could normally be justified if the claimant was in hiding, but in this claim he went to Israel and returned to Georgia. [67] The panel drew a negative inference from the Appellant's delay in leaving Georgia. The panel further found that the Appellant's actions suggested asylum shopping and not someone who truly feared for his life, but rather someone who obtained various visas to facilitate obtaining a Canadian visa and then to exploit Canada's refugee protection system as a means to emigrate. [68] The Appellant submits that the panel erred in drawing a negative inference concerning his subjective fear based on its finding that he delayed leaving Georgia [69] The Appellant further submits that he tried to access protection in his own country. He submits as well that he went into hiding in a monastery in 2014 after almost being found by the police. The Appellant testified that he hoped the UNM candidates would win in the June 28, 2014 elections and if they did, there would not be a one-party government. The Appellant submits that his actions do not show a lack of subjective fear. [70] The Appellant cites the Federal Court decision in Ibrahimov16 in which the Court noted that delay should not be calculated on the basis of the first incident but should consider as well the impact of cumulative incidents. [71] The Appellant submits that the panel's subjective fear finding, based on delay in leaving, is unreasonable in view of the Appellant's evidence concerning his actions and the case law cited above. [72] The RAD has reviewed all of the evidence concerning the Appellant's delay in leaving Georgia. In regard to the need to consider the cumulative impact of incidents rather than an initial incident only in assessing delay, the RAD notes that in 2012 the Appellant alleged he experienced four incidents, including a threat of police action in XXXX 2012, a threat to cripple him in XXXX 2012, pressure from Georgian Dream members to join them and a threat that he would regret his refusal, a serious physical attack and hospitalization in XXXX 2012, and in XXXX 2013 another serious physical attack and hospitalization. [73] The RAD finds that the Appellant's allegations regarding these incidents are sufficient to meet the Federal Court's cumulative experience standard. The RAD notes that these incidents allegedly took place in 2012 and 2013 and the Appellant did not leave Georgia until XXXX 2015. [74] The RAD notes the Appellant's explanation that he delayed leaving Georgia because he thought the situation might improve if UNM candidates won in the June 28, 2014 elections. The RAD further notes however, that the Georgian Dream party won the parliamentary elections in October 2012 and the presidential election in October 2013. The June 28, 2014 elections were for local offices. The RAD finds that it is clear, and it would have been clear to the Appellant, that Georgia is now governed by the Georgian Dream party on the basis of its parliamentary majority and its hold on the presidency. [75] The RAD finds the Appellant has not provided a credible explanation for his delay in leaving Georgia when he held various visas and had travelled to Israel. The RAD further finds it was open to the panel to draw a negative inference as to the Appellant's subjective fear of persecution. The RAD concurs with this finding. Re-availment and failure to claim elsewhere [76] The Appellant was questioned as to why he returned from Israel to Georgia. He explained he did not know he could stay and he only had a temporary visa. The panel found that if the Appellant truly feared for his life it strains belief that he would return to Georgia within a day of his arrival. [77] The panel found that cumulatively, the Appellant's delay in leaving Georgia, his voluntary re-availment to Georgia, and his failure to go elsewhere in Europe and the UK at the earliest possible opportunity impugn the credibility of his subjective fear and his overall credibility. [78] The Appellant submits that the panel erred in its findings concerning his failure to make a claim in Israel or the Netherlands in view of the explanations he gave. [79] The Appellant notes that he explained he went to Israel because the agent told him it would facilitate his obtaining a Canadian visa and he did not exit the airport in Israel. [80] The Appellant further submits, in regard to the Dutch visa, that he did not know it was genuine and did not know whether he could make a claim in the Netherlands. He also expressed a reasonable fear that if he tried to use the Netherlands visa, he would be stopped at passport control. [81] In regard to re-availment, the Appellant notes that the panel asked him if there were exit and entry controls at the XXXX airport and the Appellant responded there were. The panel further asked the Appellant if Georgian authorities would know that he had left Georgia and he agreed that possibly they would know. The Appellant explained however, that he was not a wanted person when he went to Israel and there was no prosecution against him. The Appellant submits that he was not charged with a crime in Georgia but was a victim of persecutory acts because of his political opinion. [82] The Appellant noted a letter from his mother in which she confirmed that she was advised by a friend in Canada that the Appellant should come to Canada. There is a letter from this friend as well confirming the exchange. [83] The Appellant cites the Federal Court decision in Nel17 in which the Court stated "...it was unreasonable for the Board to reject the applicants' explanation for not seeking protection in the United Kingdom, where they spent one day in transit en route to Canada, and to conclude that this undermined their subjective fear."18 The Court further stated the explanation cannot be summarily rejected without explanation. [84] The Appellant also cites Packinathan19 in which the Court stated that "...while failure to make a refugee claim in a third country may raise doubts about a claimant's subjective fear, the circumstances must be considered."20 The Court further stated if the claimant was in transit to Canada, failure to make a claim during a stopover in a third country does not undermine the subjective fear of persecution. [85] The RAD notes, on the basis of the Appellant's allegations, that he appears to have had good reasons to fear arrest and problems in leaving the country when he travelled to Israel and returned to Georgia in XXXX 2014. The RAD further notes that the Appellant alleged that the owner of the XXXX XXXX was arrested in XXXX 2013, he received a summons from the Prosecutor in XXXX 2014 and another summons from the Ministry of Finance in XXXX 2014, and he was detained by the police and the Prosecutor in XXXX 2014. In regard to this detention he agreed to cooperate with the police investigation but subsequently colluded with the former mayor of XXXX who was the subject of the investigation. In XXXX 2014, the former mayor was arrested. [86] The RAD finds, on the basis of the Appellant's allegations and evidence, that the Appellant would likely have considered himself a person of interest to the authorities in Georgia when he travelled to Israel, and the fact that he was able to do so without trouble raises a serious doubt concerning the Appellant's allegations. [87] The RAD notes that the Appellant stated that the police found him in a XXXX supermarket on XXXX XXXX, 2014, but he was able to escape and go into hiding. The RAD notes as well that the Appellant left Georgia in XXXX 2015, apparently without trouble. The RAD finds that the Appellant's evidence concerning police pursuit, noted above, clearly indicates that he is a wanted man, and his ability to exit Georgia without trouble, given exit/entry controls to which the Appellant testified above, undermines the credibility of his evidence concerning police pursuit. Responses to questions concerning the 2012 election [88] The panel noted the Appellant stated he was a member of the UNM Party and he had been an active member since 2007. He further stated he had problems with the Georgian Dream party. The Appellant indicated as well he had particular problems associated with his employment in the XXXX XXXX XXXX. [89] The panel questioned the Appellant about the results in terms of seats won. The panel indicated that the Appellant was evasive and stated he had suffered a concussion at the time. The panel stated he was not asking what the Appellant knew then but what information in this regard he had obtained in subsequent years. [90] The Appellant stated his party had obtained 40 seats. The panel noted country document evidence indicates it had obtained 65 seats. In addition the Appellant stated that 146 seats were contested but country document evidence indicated that 150 seats were contested. The panel drew a negative inference from the Appellant's inaccurate response as to the number of seats his party won. The panel noted the significance of the 2012 election and that the Appellant was well educated and had asserted he was active in the UNM Party since 2007. The panel noted as well that the Appellant stated his party held 105 seats before the election but country document evidence indicated the UNM held 118 seats. The panel found the Appellant's lack of accurate information regarding the 2012 election undermines his allegations as to his political profile or identity in Georgia. [91] The Appellant submits he was unconscious as the result of an attack on the day of the 2012 election. The Appellant further submits his injuries are confirmed by police and medical reports and his UNM membership is confirmed in two letters. [92] The Appellant submits as well that Federal Court case law indicates that the RPD must not focus on minor inconsistencies and that the Board must not engage in microscopic examination. The Appellant submits that a refugee claim should not be decided on the basis of a memory test. [93] The RAD has reviewed the evidence concerning the Appellant's membership in the UNM and his role as a political activist. The RAD finds that the Appellant's inability to state the number of seats held by his party, before and after the 2012 elections, does raise a doubt as to his role as a political activist. The RAD further finds that the Appellant may be a member of the UNM, but someone who played an active leadership role, as alleged by the Appellant, would know the number of seats held by his party, given the significance of the 2012 election and the UNM's loss of power. The RAD acknowledges the Appellant's hospitalization on XXXX XXXX, 2012. The RAD notes however that no evidence was provided indicating the Appellant has continuing memory issues as a result of that incident. The Transparency International article concerning the XXXX XXXX contract with the city of XXXX for planting trees [94] The panel noted that the Appellant testified there were no complications in regard to the contract and the work was completed at the end of May 2012. [95] The panel noted it obtained further documentation in this regard during a break in the hearing and disclosed, in the resumed hearing, an article from Transparency International Georgia dated XXXX XXXX, 2012.21 The article notes a XXXX XXXX, 2012 announcement by the mayor of XXXX cancelling the contract with XXXX XXXX and sending the case to law enforcement agencies for further examination. [96] Counsel in the hearing suggested that, in fairness, one should grant additional time to provide any countering documentation. The RAD dismissed the request because Transparency International is a recognized and reputable international source. [97] The panel noted that at first the Appellant initially denied that this document pertained to the planting of trees and to the contract involving his company. Subsequently he stated the article was disinformation by the agents of persecution, either Georgian Dream or other parties. The panel weighed this response with the provenance of the document and gave more weight to the evidence in the article than the Appellant's response. [98] The panel noted that the Appellant's testimony regarding the completion of the project was contradicted by this article from a reputable and independent international source. The panel found that the Appellant's knowledge is inconsistent with country documentation and this further undermines his allegations that he was in any way involved on a personal basis. The panel drew a negative inference. [99] The Appellant submits it is a well-established principle of procedural fairness that administrative decisions are to be based only on evidence that is properly before the decision maker. The Appellant further submits that decision makers are not to seek out further information and base their decisions on external or extrinsic evidence unless the evidence has first been put to the individual concerned so that he may comment on its application to the issues at hand. The individual must be given the opportunity to rebut the research. [100] The Appellant cites the Federal Court decisions in Bokhari22 and in Zheng23 which state the importance of giving the parties a fair opportunity to respond and rebut. [101] The Appellant submits the panel erred by breaching the rules of procedural fairness and drawing a negative inference without giving the Appellant the opportunity to provide documents to rebut. [102] The RAD agrees that the panel erred in law by not giving the Appellant the opportunity to provide documentation that rebutted the evidence disclosed in this document. Merely because the article is associated with a reputable and independent NGO, is not a sufficient basis on which to deny the Appellant a full opportunity to respond. [103] The RAD notes however, that the Appellant has provided substantial evidence concerning the legal problems associated with the XXXX XXXX Company's business relationship with the mayor of XXXX. In that context, it is difficult to understand the Appellant's testimony that his company completed its contract without trouble. Country documentary evidence concerning the situation in Georgia [104] The RAD has reviewed the country documentary evidence concerning the political situation in Georgia and its relationship to the availability of state protection. The RAD finds that the evidence is mixed in this regard. The RAD notes there has been police abuse of detainees and politically motivated harassment, but it also notes the government that took office in 2012 has taken steps to promote accountability, in particular in regard to corruption among officials in the former government. According to the Council of Europe's Committee for Prevention of Torture (CPT) there were many allegations of torture under the former UNM government but "hardly any" such allegations following the change of government in 2012.24 This document further indicates that in September 2012, the ombudsman created a system permitting civil monitoring of prisons. It is also reported that more disciplinary actions have been imposed on law enforcement officers than previously. [105] The RAD notes as well that this document25 indicates that enhanced human rights training has been instituted for the police and that the police are generally effective despite incidents of abuse. [106] The RAD cites also the ODIHR March 2014 report on trial monitoring in Georgia.26 This is particularly important as allegations have been made concerning political arrests and prosecutions of officials in the former (UNM) government, and this is pertinent to allegations in the case at bar as well. This report indicates the project is managed from Poland and implemented in Georgia by an international team leader at the invitation of the Georgian Foreign Ministry and 270 hearings have been monitored. The document also indicates that all stakeholders have welcomed ODIHR's engagement. It further indicates that "...the legal and institutional framework regulating the Georgian judiciary and criminal justice system is generally comprehensive and provides an increasingly sound basis to conduct trials in accordance with the rule of law principles and international fair trial standards."27 [107] The RAD notes that additional country documentary evidence from The Freedom House28 indicates the trials of former government officials have been monitored by Transparency International. This report indicates that despite allegations by the UNM that the new government is practising selective justice, due process in these arrests appears to have been observed. The report also notes, despite the high level of antagonism between GD and UNM, deputies from both parties proved capable of working together on several pieces of legislation in 2012. In regard to the 2013 elections, the XXXX-based International Society for Fair Elections and Democracy (ISFED) reported a number of violations by GD members. However, it indicated the number of such cases pales in comparison to the systematic harassment and intimidation of GD supporters by the UNM in the 2012 elections. In regard to trials of UNM former government officials, Transparency International Georgia, which monitored these trials, reported that both the defence and prosecution had enjoyed equal opportunities to present their cases. [108] The 2014 U.S. Department of State Report on Human Rights in Georgia29 indicated that although there were some reports that security force members committed abuses with impunity, the government took steps to foster accountability during the year and the Public Defender documented cases when use of force by police exceeded permissible limits. [109] The RAD finds, on the basis of its review of all of the evidence concerning the Appellant's experience with Georgian police and also the country documentary evidence concerning state protection in Georgia, that although it is not perfect, the Appellant has failed to rebut the presumption that state protection was and is adequate and available to him, and he does not require the protection of Canada. Disposition [110] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel November 10, 2015 Date 1 Exhibit RPD-1, RPD's Record, pp. 16- 25. 2 Exhibit RPD-1, RPD's Record, pp. 92-97. 3 Exhibit RPD-1, RPD's Record, p. 92, para. 4. 4 Exhibit P-2, Appellant's Record, pp.18- 19. 5 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 6 Perera, Ravindra Lakmahal v. M.C.I. (F.C., no. IMM-7995-04), Beaudry, August 10, 2005, 2005 FC 1069. 7 Akhtar v. M.C.I., 2002 FCT 50, at para 3. 8 Diaz Puentes v. M.C.I. (F.C., no. IMM-6022-06), Campbell, December 19, 2007, 2007 FC 1335. 9 Kabongo, Johnson Moli Tshibola v. M.C.I. (F.C., no. IMM-5355-11), Rennie, March 19, 2012, 2012 FC 313. 10 Exhibit RPD-1, RPD's Record, pp. 117-256. 11 Exhibit RPD-1, RPD's Record, p. 200. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Georgia (27 June 2014), item 2.3, p. 5/16. 13 Exhibit RPD-1, RPD's Record, NDP for Georgia (27 June 2014), item 2.1. 14 Rahim, Ziany v. M.C.I. (F.C., no. IMM-2729-04), Shore, January 18, 2005; 2005 FC 18, at para. 11. 15 Gebremichael, Addis v. M.C.I. (F.C., no. IMM-2670-05), Russell, May 1, 2006; 2006 FC 547, at paras. 23-24. 16 Ibrahimov,Fikrat v. M.C.I. (F.C., no. IMM-4258-02), Heneghan, October 10, 2003, 2003 FC 1185, at para. 19. 17 Nel,Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O'Keefe, September 4, 2014, 2014 FC 842, 244 ACWS (3d) 669. 18 Exhibit P-2, Appellant's Record, p. 33. 19Packinathan v. M.C.I., 2010 FC 834, 191 ACWS (3d) 1250. 20 Exhibit P-2, Appellant's Record, p. 33. 21 Exhibit RPD-1, RPD's Record, p. 340. 22 Bokhari, Taqi Hassan Shah v. M.C.I. (F.C., no. IMM-3907-10), Harrington, March 22, 2011, 2011 FC 354. 23 Zheng, Fei v. M.C.I. (F.C., no. IMM-1998-11), Mosley, November 25, 2011, 2011 FC 1359. 24 Exhibit RPD-1, RPD's Record, NDP for Georgia (27 June 2014), item 2.1. 25 Ibid. 26 Ibid., item 9.1. 27 Ibid. 28 Ibid., items 2.3 and 2.4. 29 Exhibit RPD-1, RPD's Record, NDP for Georgia (27 June 2014), item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07887