Federal Court Decisions

Date: 20050902

Docket: IMM-10209-04

Neutral Citation: 2005 FC 1197

Ottawa, Ontario, the 2nd day of September 2005

PRESENT:      THE HONOURABLE JUSTICE SIMON NOËL

BETWEEN:

                                                         ZURAB MGVDELADZE

                                                                                                                                            Applicant

                                                                           and

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the Refugee Protection Division (RPD) dated November 22, 2004, wherein it was determined that the applicant is not a person in need of protection in that his removal to Georgia would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, and there are no substantial grounds to believe that he would be personally subjected to a danger of torture (paragraphs 97(1)(a) and (b) of the Immigration and Refugee Protection Act (IRPA)).

[2]                The applicant argues that the panel did not apply the principles laid down in paragraphs 97(1)(a) and (b) of the IRPA and that there was documentary and testimonial evidence establishing that there was a personal risk of torture according to the balance of probabilities standard. (See Li v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 1, paragraph 14).

[3]                The record shows that the applicant was found not to be credible by the RPD twice prior to this decision under review and that there was a judicial review of the RPD's decision on the second claim wherein Gauthier J. determined that the matter should be referred to a differently constituted panel for reconsideration under section 97 of the IRPA and the appropriate test applied. (See Gauthier J.'s order dated March 24, 2004, under docket No. IMM-6563-02 involving the same parties).

[4]                It is settled law that the claimant's credibility may be a factor in meeting the requirements of section 97 (and its paragraphs) of the IRPA (see the order Atwal v. Minister of Citizenship and Immigration, Martineau J., IMM-4518-02, September 2, 2003, Jarada v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 506, De Montigny J., paragraph 26, Gonulcan v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 486, Pinard J., paragraph 4).

[5]                The RPD noted that it had twice before found the applicant not to be credible.

[6]                Counsel for the applicant argues that the RPD did not consider the testimony of four witnesses, three of whom have passports and visited Georgia, their country of origin, and testified that the police were searching for him and that he would be subjected to extortion and torture if the applicant returned. Counsel for the applicant is of the view that the evidence resulting from that testimony should have been accepted by the RPD in favour of the applicant.

[7]                A complete reading of the decision establishes the contrary. In fact, the RPD took the time to summarize their testimony and to twice indicate why their testimony could not be accepted (see pages 2 and 5 of the RPD decision). In brief, the reasons for not giving probative value to the testimony are:

-           They are not experts in the matter;

-           They have a personal perception of Georgia and despite their allegations against the police, including the treatment of detainees, three of the four witnesses returned to their country of origin without any problem.

[8]                It is general knowledge that the RPD is required to assess the testimony and to give it the proper weight. Unless an assessment is patently unreasonable, the Court must respect those assessments and the resulting determinations. In the case under review, the RPD assumed its obligations and made the appropriate assessments and the Court has no reason to intervene. This case is about the issue of credibility and the standard of intervention is patent unreasonableness. The determinations made are not patently unreasonable.

[9]                The Court asked counsel if they were going to submit a proposed question for certification and they responded in the negative.

                                                                       ORDER

-           The Court orders that the application for judicial review is dismissed. No question will be certified.

                "Simon Noël"                

          Judge

Certified true translation

Aveta Graham

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

                                                                                                                                                           

DOCKET:                                          IMM-10209-04

STYLE OF CAUSE:                          Zurab Mgvdeladze      

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                          Montréal

DATE OF HEARING:                            August 30, 2005

REASONS FOR JUDGMENT BY:       The Honourable Mr. Justice S. Noël

DATED:                                                   September 2, 2005

APPEARANCES:

SOLICITORS OF RECORD: