TB4-09247

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 : TB4-09247 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 January 26, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister & 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) is a citizen of Georgia. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal, nor has asked for an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be Convention refugee DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant worked as a XXXX XXXX from 2006 until XXXX XXXX, 2013. From the summer of 2012, the Appellant began a business of XXXX XXXX XXXX XXXX XXXX. In 2013, two felons were released from prison because of an amnesty agreement. They attempted to extort money from the Appellant, and when he refused, these two individuals verbally and physically assaulted the Appellant and took two of his cars. The beating resulted in his left eye being injured and a broken nose. On XXXX XXXX, 2013, the Appellant went to the local police department to inform the police of what had happened and attempted to get XXXX XXXX back. The police promised to deal with the issue. When no action was taken, the Appellant went to the Tbilisi prosecutor's office to provide similar information and seek support. It was discovered that the department chief who the Appellant had complained to was involved with the two felons in this activity. One of the felons threatened the Appellant to stop his complaining or he would destroy and kill him, and take more XXXX. On XXXX XXXX, 2013, the same two felons beat and took more XXXX from the Appellant giving him a brain concussion and body injury. The Appellant had borrowed money to expand his business, and because of the thefts was unable to repay this money to a loan shark, who then started looking for him and threatened him if he didn't repay the loan. These individuals went to his home and threatened his wife, who had a nervous breakdown. His wife was also warned that she would be released from her teaching position if she did not stay focused on her job. The local police chief went to the Appellant's home because he wanted to destroy him. From XXXX XXXX to XXXX XXXX, 2013, the Appellant was in hiding, but was discovered by the two felons. As a result, the Appellant fled Georgia, and came to Canada on XXXX XXXX, 2013. [4] The Appellant's application for refugee protection was heard on July 14, 2014. In a decision of September 15, 2014, the RPD rejected his claim finding that there was insufficient evidence to support that the Appellant was at risk to his life, or at risk of cruel and unusual treatment or punishment. [5] In the Appellant's Memorandum of Appeal, the Appellant respectfully requests that the RAD set aside the decision and find that the Appellant a person in need of protection. Memorandum of Appeal [6] In the Memorandum of Appeal, the Appellant argued that the RPD committed an error by rejecting the evidence of the Appellant because a document stated that the state is actively involved in fighting corruption. The Appellant quoted a Court of Appeal decision that held that the law requires that the refugee division set out in clear and unmistakable terms why documentary evidence is preferred over presumptively true evidence of the refugee claimant. The Appellant quoted other decisions where the court has indicated in some cases that the RPD erred in accepting documentary evidence over the Appellant's testimony. [7] The Appellant argued that the RPD erred in stating that the Appellant fled to Canada because of fear of the loan shark. The Appellant submits that the primary reason for leaving was the fear of the two criminals, and the loan shark. [8] The Appellant argues that the RPD erred in the assessment of internal flight alternative (IFA) because the Appellant's evidence was that he was hiding in the capital after fleeing his home town. Being in hiding means that the IFA was not reasonable. [9] The Appellant argues that his place of hiding became known to the felons and so he fled the country. ROLE OF THE RAD [10] The Appellant gave a lengthy dissertation of the role of the RAD, commenting on how no deference is owed to the RPD when the RAD reviews the appeal. [11] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate review that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. 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 Appellant 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." [12] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Respondents are Convention refugees or persons in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Note [13] The Appellant and the RPD member agreed that there was no Nexus in this case, and that they would want the case to be decided on section 97 of the IRPA. State Protection [14] The RPD found that state protection would be available to the Appellant as the state is actively fighting corruption in its policing system. The RPD outlined the basis of state protection in a clear and cognizant fashion, and quoted documentation from the National Documentation Package, item 7.1, Fighting Corruption in Public Services Chronicling George's Performs; World Bank, 2012. As a result of this documentation, the RPD gave no credence to the Appellant's story, finding it difficult to accept that in a country which has brought in strict corruption laws and is actively fighting corruption, that a state prosecutor would inform the local police of the Appellant's concerns about police corruption involving the police chief, without first investigating the situation. [15] As stated in the Memorandum of Appeal, the Appellant argued that the RPD committed an error by preferring NDP documentation over the Appellant's testimony. The Appellant also argued that the RPD must set out in clear and unmistakable terms why the documentation is preferred over the presumptively true evidence of the refugee Appellant. [16] The onus of providing proof regarding allegations lies with the Appellant. The Appellant testified that he went to the police and then went to the prosecutor, and the prosecutor got back to him by phone. In reviewing the documentation, no evidence was produced that a report had been made at the local police station regarding the alleged extortion and beating by two felons. If the Appellant's alleged claim that the chief of police to whom he relayed his story was involved with the two felons, it would be reasonable that a report would have been made available from the prosecutor in Tbilisi, to whom he allegedly reported the same occurrence. Given the documentation provided by the RPD regarding the Georgian government's commitment to ridding the country of police corruption, it would be reasonable and credible that a state prosecutor in the capital of Georgia would respond, in writing, to the allegations made by the Appellant. No documentation was in evidence in the file that the Appellant had visited the prosecutor. No evidence was adduced that the Appellant had made any effort to acquire a report from the state prosecutor to verify his allegations. The panel finds, on a balance of probabilities, that no such report was made to either the local authority or to the state prosecutor. [17] In addition, the Appellant in his Basis of Claim narrative indicates that he was beaten on XXXX XXXX, 2013 where he suffered an injury to his left eye and had a broken nose. No medical documentation was provided to support this allegation. The Appellant stated that on XXXX XXXX, 2013, he was again beaten and had a brain concussion and a body injury. No probative documentation was submitted to support this allegation. The medical document, Exhibit 1 in the Appellant's documents, is undated and indicates past medical history. In this section of the report, it states: "In XXXX of this year, the patient suffered a close call and chest trauma, resulting in loss of consciousness for 3-4 minutes. After regaining consciousness for a certain time, the patient was in [illegible]." This medical report makes reference to a past medical history, and does not deal with the alleged assault that allegedly occurred on XXXX XXXX, 2013. There is no indication of the medical report how the concussion and body injury was received. It would be reasonable that a registered medical facility would be enlisting the support of the police if such an injury occurred at the hands of felons. The additional medical document submitted, Exhibit 5 in the Appellant's documents, dated XXXX XXXX, 2013, is an issue dealing with the Appellants vision, and no indication is given as to any cause of the Appellant's "[m]ild myopic astigmatism of the left eye." The RAD finds that the Appellant's allegations of assault have not been proven by any documentation submitted for his refugee hearing. Again, as stated above, the onus is on the Appellant to substantiate that he was at risk of danger to his life or risk of cruel and unusual punishment. The RAD finds, on a balance of probabilities, given the documentation quoted by the RPD, that if his allegations regarding beatings and theft from felons were truthful, that the authorities in Georgia would have been able to deal with the issue, provide documentation of the alleged occurrences, and provide protection. [18] The RPD found,2 that the Appellant had fled his hometown because of threats from the loan shark from whom he had borrowed money to start his business, and not because of the threats from the felons. [19] The Appellant argues that the RPD erred in making this statement in its decision, and that the Appellant fled because of the loan shark and the two felons who have allegedly beaten, robbed, and extorted from him. [20] The RAD finds that the Appellant's allegations of fear included both the alleged two felons who allegedly beat, robbed, and extorted from him, as well as the loan shark from whom he borrowed money to start his business. The RPD decision,3 quoted the Appellant's allegations incorrectly. However, this error is not sufficient to cause the RAD to disturb the overall RPD decision. The RAD agrees that both the alleged felons and the loan shark, who were allegedly feared by the Appellant, would have caused the Appellant to flee his hometown, if the alleged story was true. Also, using the RPD's documentation regarding state protection in criminality in Georgia, the RAD finds, on a balance of probabilities, that if the Appellant's allegations were true, support would have been offered by the authorities. [21] The RPD found that the Appellant had a viable IFA in the city of Batumi, a major city on the coast of the Black Sea. The RPD stated that there is police protection and the Appellant has skills necessary to maintain himself, that of being a XXXX XXXX XXXX, and an entrepreneur. The RPD stated that Batumi is objectively reasonable, in that there is only one person threatening the Appellant's life and that is in his home village, and it is over the repayment of a financial debt. [22] The Appellant argued that the RPD erred in the assessment of the IFA; because the Appellant's evidence was that he was hiding in the capital after fleeing his hometown, and as a result of being (found) in hiding the IFA was not reasonable. [23] The question of whether an IFA exists is an integral part of the Convention refugee definition.4 The determinative issue with respect to this claim is the availability of a viable IFA in Batumi, Georgia. The case law indicates that it is not necessary to determine whether the Appellant has a well-founded fear of persecution in his home area before considering an IFA.5 [24] The test to be applied in determining whether there is an IFA is two-pronged, and both prongs must be satisfied for finding that a Appellant has an IFA:6 The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted in the part of the country to which it finds an IFA exists. Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the Appellant, for him to seek refuge there. [25] The Federal Court of Appeal has stated that one must first determine whether an IFA exists and then determine whether the IFA is a realistic, achievable option, given the particular circumstances of the individual.7 In Rasaratnam, the Court of Appeal held that, with respect to the burden of proof, once the issue was raised, the onus is on the Appellant to show that he or she does not have an IFA. The burden placed on an Appellant is fairly high in order to show that the IFA is unreasonable. In the Federal Court of Appeal decision of Ranganathan8 in 2001, it was stated that the test is to show that the IFA is unreasonable. That test requires nothing less than the existence of conditions that would jeopardize the life and safety of the Appellants in relocating to a safe area. Actual and concrete evidence of adverse conditions is required. [26] The RAD finds that the RPD erred in stating that there was only one individual responsible for the Appellant leaving his hometown. The RAD acknowledges that the Appellant feared both the alleged felons who had beaten, robbed, and extorted from him, and the alleged loan shark. In testimony, the Appellant testified that because he had to register in his new location, and change all his documentation, the two felons would be able to find him. The Appellant testified that the two felons had allegedly found him when he went into hiding for four days at Tbilisi. The RPD found, because of credibility issues, that this testimony was not credible or sufficient. In that the allegations concerning the two felons have not been proven, the Appellant's argument is not credible. [27] The Appellant stated that he went to the state prosecutor, but provided no documentation to substantiate this allegation. Given the documentary evidence referred to by the RPD, it would be reasonable that the Appellant would be able to seek a protection in the designated IFA city. The Appellant, according to documentation submitted, indicated that he was a XXXX XXXX XXXX, and an entrepreneur. It would be reasonable, that with such skills, he would be very employable in the IFA designated city of Batumi. [28] The Appellant has not discharged the onus of proof of his allegations against the felons or the loan shark. The Appellant has not given credible reasons why he could not move to Batumi, and live a productive and successful life. The Appellant did not give any probative testimony regarding why he could not go to the authorities in Batumi should the alleged felons locate him. Even if there are errors in the IFA issue described above, the documentation address by the RPD indicates that state protection is available for the Appellant in Georgia. Disposition [29] The RAD, will not disturb the RPD decision, and confirms the determination of the RPD that the Appellant is not a person in need of protection, in that there has been no probative evidence that the Appellant faces a risk to his life or risk of cruel and unusual treatment or punishment. CONCLUSION [30] The Appellant is not a person in need of protection. The appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner January 26, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 RPD Record, Reasons and Decision, para. 22. 3 Ibid. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 5 Kanagaratnam, Parameswary v. M.E.I. (F.C.A., no. A-356-94), Strayer, Linden, McDonald, January 17, 1996. 6 Rasaratnam 7 Thirunavukkarasu v. M.E.I. [1994] 1 F.C. 589. 8 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09247