Date: 20000720
Docket: IMM-4873-99
BETWEEN:
OMAR TVAURI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] The applicant, Omar Tvauri, is a 22 year old citizen of Georgia who claimed status as a Convention refugee on the basis of a well-founded fear of persecution by reason of his Abkhazian ethnicity.
[2] In a decision dated September 22, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") found that Mr. Tvauri was not a Convention refugee.
[3] Mr. Tvauri seeks an order quashing that decision and remitting the matter for redetermination before a differently constituted panel of the CRDD.
THE FACTS
[4] Mr. Tvauri claimed to have suffered acts of persecution after 1992, the year in which an armed conflict broke out between the region of Abkhazia and Georgia.
[5] Mr. Tvauri stated that in September 1993, his father was badly beaten at work by reason of his Abkhazian ethnicity and required hospitalization. His mother, Mr. Tvauri said, went to the police as a result of the beating but was unable to obtain any help or protection from the police.
[6] Mr. Tvauri said that between 1992 and 1998, he and his family received threatening calls and lived in fear. Mr. Tvauri said that he was assaulted at school because of his Abkhazian background, but again the police would not protect him.
[7] Mr. Tvauri testified that on December 28, 1997, he was attacked and beaten by three men. With respect to this incident, Mr. Tvauri testified:
| CLAIMANT I was returning from my grandmother"s place and when I was standing at the bus stop, three men approached me. They asked me for my first name and last name. They put me in the car by force and they took me and they started beating me. And they were telling me the same reason. They were telling me, "How many times do we have to tell you to leave the country, your presence." |
| And that was the time I can call it " like, I can say so, that first time I looked into the eyes of death. I saw the eye of death with my own eyes. Or I can " one of them put a gun into my mouth and it was my fate that they didn"t do anything. |
[8] After this incident, Mr. Tvauri went to live at a friend"s house and then decided to leave Georgia.
THE ISSUES
[9] It was alleged on Mr. Tvauri"s behalf that in determining that he was not a Convention refugee, the CRDD erred in concluding that:
| (i) the treatment which Mr. Tvauri experienced was discrimination only, and not persecution; |
| (ii) Mr. Tvauri"s actions in Canada and contact with the police were not consistent with his stated fear; and |
| (iii) there was no valid basis for Mr. Tvauri to fear persecution on his return to Georgia. |
STANDARD OF REVIEW
[10] In Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.), the Federal Court of Appeal held that the determination of whether conduct which a claimant fears constitutes persecution is a question of mixed fact and law to be determined by the CRDD. The Court also stated that intervention by the Court is only warranted where the conclusion reached by the CRDD appears to be capricious or unreasonable.
[11] In Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (F.C.T.D.) Tremblay-Lamer, J. of this Court used the pragmatic and functional approach to determine the standard of review of a decision of the CRDD. She concluded that "the appropriate standard of review for determination of whether or not there is more than a mere possibility that the Applicant would face persecution if he were to return to India remains patent unreasonableness" and that "[a]t the end of the day, the decision will have to stand a thorough examination by the reviewing Court in order to enable the Court to evaluate if the tribunal"s reasons are in accordance with the evidence to ensure that they are not clearly illogical or irrational".
[12] Applying those standards, I will consider each alleged error in turn.
ANALYSIS
(i) Did the CRDD err in determining that Mr. Tvauri experienced discrimination only?
[13] In order to determine whether the harm that Mr. Tvauri stated he feared on his return to Georgia was persecution, the CRDD first correctly reviewed case law from the Federal Court of Appeal as to what, as a matter of law, constitutes persecution. The CRDD then reviewed the evidence before it, and found the evidence not to constitute persecution.
[14] The relevant portion of the reasons of the CRDD is as follows:
| The panel finds that the harm that is feared by the claimant cannot be characterized as persecution. He said that the family received repeated threatening calls and he was harassed at school. However, his testimony was not specific when he was asked to elaborate on these events. In terms of specifics, he referred to the beating of his father in 1993 and the one physically abusive incident he endured in 1997 which was the event, which caused him to leave the country. He said he did not know who had accosted him, but he said he believed it was because he is Abkhazian. |
| The claimant said the abuse he endured over the years was mainly verbal and he was looked upon as a low-level person. He said he went to the police a number of times, but they did nothing to help him. |
| ... |
| I considered the claimant"s evidence carefully, but find that what the claimant experienced was discrimination only and not persecution even on a cumulative basis. |
[15] In so concluding, the CRDD made no reference to Mr. Tvauri"s evidence that the verbal abuse he was subjected to escalated to physical abuse.
[16] The CRDD made no adverse finding of credibility against Mr. Tvauri. He testified that:
| CLAIMANT Afterwards, this verbal abuse changed by physical abuse and with numerous fights. |
| COUNSEL Can you tell us exactly who was fighting with you and where? |
| CLAIMANT This is happening usually in the neighbourhood, with the neighbours, or with any other young people and they were trying to catch me and to beat me all the time. And even at school they beat me a few times. |
| COUNSEL And what sort of injuries did you have? |
| CLAIMANT It"s " I had, like " |
| INTERPRETER I don"t know that word. I don"t think it will be here. |
| CLAIMANT Actually, I had blue " like, I had some blue spots on my body. |
| WOLMAN Bruises? |
| INTERPRETER Bruises, that"s right. |
| WOLMAN Is that the word you"re looking for? |
| INTERPRETER Bruises, yes. Sorry. |
| CLAIMANT I would have some bruises. |
| COUNSEL Did you ever go to the hospital about these injuries? |
| CLAIMANT My mother was taking care of me. |
| COUNSEL So you did not go to the hospital. |
| CLAIMANT No. |
| COUNSEL And what did you do about these fights and these beatings? What did you do about it? |
| CLAIMANT Nothing. I was trying to go back home as soon as possible, to get home as soon as possible. |
| COUNSEL Did you ever complain to anybody about this treatment? |
| CLAIMANT Yes. Police. |
| COUNSEL Who " oh, yeah? And can you tell us " describe to us what would happen when you go to the police? |
| CLAIMANT When I would go to the police, they were trying not to pay much attention to this case, to this and they were avoiding everything. |
| COUNSEL What did you say, what did they say? Can you give us a specific example of " can you give us a description of one particular visit to the police, everything that happened that day? |
| CLAIMANT Once when I had this kind of case, when I was beaten at the school and I went to the police station, I haven"t heard " like, nobody told me directly, but I have heard that somebody said, "Oh, this Abkhazian is here." So there was no point of going there after this, because they would just say this and I will come back. That"s all. Nothing would happen. |
[17] As can be seen, in its analysis, the CRDD only stated that Mr. Tvauri said that his family received threatening calls, "he was harassed at school" and that his testimony was "not specific when he was asked to elaborate on these events". The incident described above in paragraph [7] was referenced as "the one physically abusive incident he endured in 1997".
[18] As directed by the Federal Court of Appeal, it is generally not the role of this Court to intervene in determinations in respect of the existence of persecution. However, I conclude that in view of the evidence before the CRDD, particularly the uncontradicted evidence of escalating abuse that culminated in a beating where one assailant put a gun in the applicant"s mouth, that the panel"s analysis did not support its conclusion that the conduct the applicant experienced was discriminatory only.
[19] In the words of Sagharichi, a more careful analysis of the evidence adduced, and a proper balancing of the various elements contained therein, was required by the CRDD.
[20] There remains to consider whether irrespective of this error, the CRDD correctly concluded that there was no valid basis to Mr. Tvauri"s claim of a well-founded fear of persecution.
(ii) Were Mr. Tvauri"s actions in Canada consistent with his stated fear?
[21] Having told Mr. Tvauri at the hearing that his claim did not turn on the status of his criminal conviction, the CRDD then relied on this conduct to conclude that it was not consistent with the applicant"s stated fear of persecution. The CRDD stated:
| Notwithstanding that I have found that the claimant has suffered discrimination only because of his Abkhazian ethnicity, it is still necessary to assess if there is an objective basis to his claim today if he were to return to Georgia. |
| ... |
| Although the claimant has said that he has a fear of persecution if he returns to Georgia, his involvement with the law in Canada is not consistent with his stated fear. Shortly after he came to Canada, the claimant was convicted of petty theft and assault for resisting arrest. He served time in jail for this act. The claimant said he was young and foolish and was very apologetic for doing this. However, the claimant comes from a family situation in Georgia, is well educated and was accepted into university. If he escaped Georgia out of fear, as he has alleged, I do not find his explanation of "tender years" to be acceptable. He took a real risk in coming in contact with the law in Canada while his refugee claim was in process, if he was hoping to remain in this country. |
[22] Mr. Tvauri argued that there was no connection between this unfortunate incident where he stole a bicycle and resisted arrest, and his subjective fear. Mr. Tvauri said this was particularly the case where the CRDD made no adverse finding of credibility against him.
[23] In my view, the CRDD"s inference that Mr. Tvauri lacked a fear of returning to Georgia by reason of theft of a bicycle, in circumstances which he described as impulsive and foolish, shows the great danger of placing undue reliance on prejudicial evidence with little probative value.
[24] In view of my conclusion on the existence of objective fear, discussed below, it is not necessary for me to determine whether this questionable inference warrants this Court"s intervention on the ground that it was clearly illogical or irrational.
(iii) Did the Board err in concluding there was no valid basis for Mr. Tvauri"s fear of persecution should he return to Georgia?
[25] The CRDD"s conclusion on this issue was as follows:
| I have weighed the documentary evidence against the evidence of the claimant, and I find that there is no valid basis for the claimant to fear persecution on return to Georgia. I prefer the documentary evidence to that of the claimant since it is objective, from a variety of reliable sources and has no interest in the outcome of these proceedings. |
| Accordingly, the claimant has not demonstrated that there is an objective basis to his claim. |
[26] Mr. Tvauri submitted that the CRDD committed a reviewable error by ignoring a 1996 Response to Information Request which stated that "ethnic Abkhaz in Georgia located out of Abkhazia would likely be subject to serious harassment, discrimination and perhaps even attacks by ethnic Georgians". The CRDD made no mention of this information despite the fact that it corroborated Mr. Tvauri"s stated fear of persecution.
[27] Mr. Tvauri also asserted that the CRDD misconstrued the evidence before it by preferring information from 1993, contained in a 1998 Response to Information Request, to more recent information from 1996.
[28] In response, the Minister submitted that the CRDD relied upon a number of factors in concluding that there was no objective basis for Mr. Tvauri"s fear of persecution. Those factors included:
| (a) the Applicant"s parents remain in Georgia and are living with the Applicant"s maternal grandmother; |
| (b) the Applicant"s mother goes out to work; |
| (c) the Applicant did not know of any discriminatory actions against either of his parents; |
| (d) the Applicant stated that no one looked for him at his grandmother"s house since he left the country; |
| (e) prior to leaving Georgia, his sister had only experienced some verbal abuse; and |
| (f) the Applicant"s aunt and uncle also remain in Georgia. |
[29] The Minister noted that the CRDD"s conclusion was consistent with the 1998 Department of State Report for Georgia which stated that the government generally respected the rights of members of ethnic minorities in non-conflict areas.
[30] The Minister further argued that the fact the CRDD did not specifically refer in its reasons to the Response to Information Request dated November 1996 did not mean that the panel ignored that evidence.
[31] For Mr. Tvauri to be within the definition of a Convention refugee, he must show a reasonable chance or a serious possibility of persecution should he return to Georgia.
[32] I accept the Minister"s submissions. I have concluded, on the basis of the documentary evidence, Mr. Tvauri"s Personal Information Form and his oral testimony, that it was reasonably open to the CRDD to conclude that Mr. Tvauri did not establish a serious possibility of persecution. It follows that Mr. Tvauri failed to establish a well-founded fear of persecution.
[33] Notwithstanding what, in my view, was the inadequacy of the CRDD"s analysis as to the existence of persecution, and the questionable inference it drew as to the existence of a subjective fear of persecution, I am of the opinion that the determination that Mr. Tvauri failed to demonstrate an objective basis to his claim was determinative of his refugee claim.
[34] As I do not find the CRDD"s conclusion that Mr. Tvauri failed to demonstrate an objective basis to his claim to be patently unreasonable, the application for judicial review must be dismissed.
[35] Counsel did not pose a serious question for certification.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 20, 2000