Date: 20010322
Docket: IMM-325-00
Neutral Citation: 2001 FCT 227
BETWEEN:
NIKOLOZ BODOKIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision dated December 13, 1999, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicant, a 23 year-old citizen of Georgia, claims a well-founded fear of persecution in Georgia on the ground of his Abkhazian nationality and because of his association with his father, who is suspected of pro-Abkhazian political sentiments.
[3] The applicant claims that his personal problems began after the war broke out in 1992. His problems occurred at school and continued even after he changed school.
[4] In January 1995, the applicant married a Georgian and went to Turkey on his honeymoon. While the applicant was in Turkey, his mother telephoned him and told him his father had been arrested because of his Abkhazian nationality. The applicant returned home immediately. According to the applicant, his father was released after two weeks and returned home, but he was in terrible condition.
[5] One week later, the police came to the home where they were all living and searched the house. They did not find anything. The applicant claims that both his father and himself were assaulted.
[6] The applicant alleges that after this incident, his parents left and went to a village several hours away from Tbilisi and that he quit the university. He claims he could not obtain employment and, when he left the employment agency, he claims he was accosted by the police, insulted and beaten unconscious. He claims he was in the hospital for about a month. On his release from the hospital, he went to his wife's house.
[7] According to the applicant, his parents were forced to leave Georgia in May 1996 and they went to Russia. He continued to live quietly, even though his neighbours hated him, although he would not allow their insults to provoke him.
[8] The applicant obtained his passport in June 1998 and looked for ways to leave the country. There was one other incident with the police, on August 20, 1998, when he was again assaulted and told to leave Georgia right away. He moved with his wife and daughter to the house of his wife's aunt.
THE APPLICANT'S POSITION
[9] The applicant submits that the Board ignored or made selective use of documentary evidence. The applicant contends that the Board had before it information that corroborated the applicant's fear of persecution. The Board acknowledged this evidence but stated that there was no evidence since 1996 to substantiate ongoing persecution of Abkhazians in Georgia.
[10] The applicant argues that the absence of evidence, does not in itself constitute evidence. According to the applicant, the Board was speculating that the situation had improved. It is most likely that there are only a very few Abkhazians left in Georgia to continue persecuting. There was no basis for the Board to prefer speculation over the documentary evidence which was before them.
[11] The applicant contends that the Board erred in failing to determine whether there was effective state protection available. The documentary evidence confirms that the police are a corrupt, abusive and unprofessional organizations unlikely to protect the applicant.
[12] It is submitted that the Board is engaged in a perverse analysis. The Board also erred in law by failing to consider the cumulative effect of persecution and imposing the requirement that the applicant be subject to some extreme sanction.
[13] The applicant further submits that the Board cannot reasonably conclude that because he persevered in the face of persecution and did not leave Georgia sooner, that he has not subjective fear of returning. Further, the Board had no evidence that the applicant was capable of leaving Georgia before 1998.
THE RESPONDENT'S POSITION
[14] The respondent did not submit any memorandum of argument but provided oral submissions based on the information in the file.
ISSUES
[15] Did the Board err in finding that the applicant was not a Convention refugee?
ANALYSIS
Did the Board err in finding that the applicant was not a Convention refugee?
[16] The applicant contends that the Board ignored or made selective use of documentary evidence. The applicant alleges that the evidence before the Board showed that ethnic Abkhaz in Georgia located outside of Abkhazia would likely be subject to serious harassment, discrimination and perhaps even attacks by ethnic Georgians.
[17] The applicant submits that the Board's preference of more recent documents from the CRDD which were silent on the current treatment of ethnic Abkhazians in Georgia proper, is perverse since the absence of evidence does not constitute evidence. According to the applicant, the Board was speculating that the situation had improved.
[18] Furthermore, the applicant maintains that the Board's reference to the 1998 Department of State Report for Georgia which states that the government generally respects the rights of members of ethnic minorities in non conflict areas is irrelevant since the applicant testified that persecution emanated from the population at large and not from some government policy.
[19] According to the applicant, the Board should have determined whether there was effective state protection available.
[20] The Supreme Court of Canada in Ward, supra, stated the test to establish fear of persecution as follows:
As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[21] The Supreme Court also explained that the state's inability to protect should be considered at the stage of establishing whether a fear is "well-founded".
[22] In the case at bar, the Board found that the applicant's behaviour in several instances was not consistent with a subjective fear of persecution. Despite this finding, the Board examined whether the applicant's fear was objectively well-founded.
[23] The question to be answered is whether the Board could conclude that the applicant's fear was not objectively well-founded since the documentary evidence before it did not indicate discriminatory treatment of Abkhazians in Georgia.
[24] In Gomez-Carrillo v. Canada (M.C.I.) (1996), 121 F.T.R. 68 (T.D.), Gibson J. examined whether the Board in that case had erred when it gave greater weight to the silence of the documentary evidence than to the sworn testimony of the applicant and the opinions of three experts that were before the Board. Gibson J. held:
As indicated above, the Tribunal relied heavily for its conclusion with regard to extra-judicial persecution on the absence in the documentary evidence before it of specific reference to targeting of deserters for persecution. It wrote:
What is missing from this document [and it extended this reasoning to the documentary evidence as a whole] is any indication that persons who had deserted the army are perceived as guerrillas and accordingly targeted for persecution.
Counsel for the Applicant argued that, in extending this comments [sic] to documentary evidence as whole that was before the Tribunal, the Tribunal erred in a reviewable manner. Counsel referred me to a number of references in the documentary evidence that could conceivably support the conclusion that not simply persons of relatively high profile had been persecuted in El Salvador since the signing of the peace accords, but also persons "... from all parts of the political spectrum and all sectors of society". [See footnote 1] While it is undoubtedly true that there are limited references in the documentary evidence before the Tribunal indicating that persons other than persons of profile have been victims of persecution in El Salvador since the signing of the peace accords, it remains true that there are no direct references to those persons being targeted qua deserters from the military, even more specifically, during peace time. The Applicant advanced no other basis as to why he would be singled out other than for his desertion.
[...]
It is trite law that in matters such as this, the onus is on a claimant before the Tribunal to make out his or her case. The Applicant put forward expert evidence containing opinions unsupported by specific examples of persecution of deserters on account of their desertion. No greater duty lay on the Tribunal on the facts of this matter to draw that reality to the attention of the Applicant then would exists in other circumstances where an Applicant brought forward unsubstantiated assertions of duly qualified experts that found no support in the documentary evidence before the Tribunal.
Finally, I turn to the issue of the Tribunal's preference of the documentary evidence over the sworn testimony of the Applicant. In Adu v. the Minister of Employment and Immigration, Court File A-194-92, 24 January, 1995 (unreported) (F.C.A.), Mr. Justice Hugessen wrote:
The "presumption" that a claimant's sworn testimony is true is always reputable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
On the facts of that case what "one would normally expect [the documentary evidence] to mention" was the existence of a law. Counsel for the Applicant argued that the existence of a law is qualitatively different from reports of persecution of military deserters on account of their desertion. While I have a degree of sympathy for the argument of counsel in this regard, it is of note that the absence of reference to persecution of military deserters in the aftermath of a civil war in a nation where civil rights abuses were so notorious in the early years of this decade, and where monitoring and reporting of human rights abuses continues to be extensive, is a matter, I am satisfied, that the Tribunal was entitled to take note of and to rely on to rebut the presumption in favour of the sworn testimony of the Applicant. In fact, in this matter, the Applicant's sworn testimony did not go extensively to the question of persecution of persons similarly situated to himself. Rather, his testimony dealt primarily with his subjective fear.
[Endnotes omitted]
[25] The only documentary evidence provided by the applicant was the information request dated November 8, 1996 referred to by the Board. However, numerous documents referred to discriminatory treatment of Georgians in Abkhazia but not of discriminatory treatment of Abkhazians in Georgia. I believe that it was reasonable for the Board to conclude that the silence of the recent reports monitoring and reporting human rights abuses in Georgia was an indication that there was no current serious problems for Abkazians in Georgia.
[26] It is true that if a board finds an applicant credible, the absence of documentary evidence will not necessary be fatal to an applicant's claim. However, as was stated in Gomez-Carrillo, supra, the applicant had the onus to make out his case. In the case at bar, the applicant failed to convince the Board that he had a well-founded fear of persecution since his behaviour was inconsistent with a subjective fear of persecution and the objective evidence was not supportive of his claim. In light of the evidence before the Board, I cannot conclude that the Board erred in finding the applicant not to be a Convention refugee.
[27] This application for judicial review is dismissed.
[28] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 22, 2001