Date: 20141022

Docket: IMM-2232-13

Citation: 2014 FC 1004

Ottawa, Ontario, October 22, 2014

PRESENT:    The Honourable Mr. Justice LeBlanc

BETWEEN:

SARGIS AVAGYAN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1]               The Applicant (or Mr. Avagyan) seeks judicial review of a decision dated March 6, 2013, by which the Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD) found that he was neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (the Act) respectively.

[2]               For the reasons that follow, Mr. Avagyan’s application for judicial review is dismissed.

I.                   Background

A.                Mr. Avagyan’s Refugee Protection Claim

[3]               Mr. Avagyan is a citizen of Armenia.  He practiced medicine as an obstetrician starting in 1988 up to a few weeks prior to his departure for Canada in September 2011.  In the course of his work he became involved, early in the year 2000, in working to expose corruption in the Ministry of Health and Education (the Ministry).  In particular, he became involved with a group known as the Anti-Corruption Participatory Monitoring Methodology for Health and Education Sector Working Group (the Working Group).  This group, in concert with non-governmental organisations, prepared documentary material on practices that were corrupt and suggesting ways to monitor and minimize such practices.  This was part of the government’s Anti-Corruption Strategy adopted in 2003.  The Working Group was comprised of fifteen members.

[4]               Mr. Avagyan alleges that, in April 2006, he and his family were threatened in retaliation for his involvement in exposing corruption within the Ministry.  This involvement, according to Mr. Avagyan, lead to him being physically assaulted by unknown individuals on two occasions, in May and June 2006.  Mr. Avagyan pursued his activities with the Working Group despite these threats and assaults, which necessitated his hospitalization on both occasions,

[5]               Late in 2010 and early 2011, Mr. Avagyan presented to the Minister of Health and Education evidence of unsafe conditions and of corrupted practices at the hospital where he was working.  Mr. Avagyan claims that, in March 2011, his home was searched by armed individuals who introduced themselves as national security and that he was brought to a police station where he was held for two days, and at some point, beaten.  This, too, required his hospitalization.  He alleges that, shortly after that incident, he wrote a letter to the General Prosecutor’s Office about what had just happened to him and that he only received an “artificial response”.

[6]               Mr Avagyan says that following the incident with the armed individuals, and once released from hospital, he started giving speeches at different medical centers and that he also appeared on a television talk show to address the corruption problem within the Ministry.  On June 4, 2011, he gave a speech at a political event and, on that same day, he claims that his home was invaded once again by men unknown to him who beat him and even stabbed him.

[7]               Following his release from hospital thirteen days later, he alleges he hid the best he could and departed for Canada on September 12, 2011 as he feared persecution from government authorities for his anti-corruption work.  He applied for refugee protection soon after his arrival in Canada.

B.                 The Decision Under Review

[8]               The RPD dismissed Mr. Avagyan’s refugee protection claim on credibility and state protection grounds.

(1)               Credibility

[9]               Although the RPD accepted that Mr. Avagyan was a doctor involved in exposing corruption within the Ministry, it made adverse credibility findings based on Mr. Avagyan’s incoherent choices for someone fearing for his life.  The RPD found incongruous that Mr. Avagyan:

a.              Continued, without repercussion, to work as a doctor exposing corruption in the government for five years after realizing, in the Spring of 2006, that his life was at risk in Armenia;

b.             Traveled extensively abroad after the moment he indicated starting to fear for his life, always departing and returning safely to Armenia;

c.              Was not the target of any threats or attacks during the years 2007 to 2009, although he pursued his work exposing corruption throughout those years as well;

d.             Applied for a Canadian Visa in late June, 2011 while, during that time, he would not have been able to do so due to his health condition and his hospitalization for post-operative procedures.

[10]           Furthermore, the RPD did not believe that Mr. Avagyan was attacked by persons affiliated in any way with the government given the lack of credible and satisfactory evidence to that effect and the fact that there was no evidence of any other member of the Working Group being the target of attacks.  In particular, it found improbable that Mr. Avagyan would be sought after by government officials or persons affiliated with the government given that he, as a member of the Working Group, was able to produce and publish findings to government officials for their review and possible government implementation and action.  Also, it gave no weight to the medical reports provided by Mr. Avagyan to corroborate his evidence that he was beaten by individuals connected to the government in June 2011 as these reports provided no details concerning the manner in which his injuries were sustained.

(2)               State Protection

[11]           Assuming his alleged fear of persecution to be credible, the RPD found that Mr. Avagyan was able to seek the assistance of the police and, that based on the evidence provided, the police acted appropriately.  The RPD found that the evidence on record showed a good response from the Armenian authorities rather than a lack of thereof.  The RPD identified that state protection need not be perfect, and therefore the mere fact that the police could not identify the individuals responsible for the 2006 attacks did not suffice to prove a lack of state protection.

[12]           Furthermore, with regard to the invasion of his residence in March and June of 2011, the RPD found that Mr. Avagyan did not collaborate with the police after submitting a complaint and did not file a court action as recommended by the authorities.  Thus, the RPD found that Mr. Avagyan had elected to seek international protection before exhausting his recourses in Armenia, something which, even assuming he had a well-founded fear of persecution upon returning to Armenia, defeated his refugee protection claim.

II.                Issue

[13]           The issue to be decided in this case is whether the RPD, in concluding as it did, committed a reviewable error as contemplated by section 18.1(4) of the Federal Courts Act, RSC, 1985, c F-7.

[14]           Determining whether a foreign national is a Convention refugee within the meaning of section 96 of the Act or a person in need on protection under section 97 of the Act is a matter of mixed fact and law for which the RPD has expertise.  This includes determining whether the foreign national can be protected by his or her home state from the alleged persecution.  It is well settled that such determinations are to be reviewed through the lens of the reasonableness standard of review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 53; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, at para 89; Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004 at paras 20-22; Gulyas v Canada (Citizenship and Immigration), 2013 FC 254 at para 37, 429 FTR 22).

[15]           It is also well settled that when it comes to the credibility or plausibility of a refugee claimant’s story, the RPD’s findings are factual in nature and, given it’s role as a trier of fact, are owed a significant amount of deference (Khosa at para 89; Camara v Canada (Minister of Citizenship and Immigration), 2008 FC 362, at para 12; Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052, at para 13; Giron v Canada (Minister of Citizenship and Immigration), 2013 FC 7, at para 14; Dong v Canada (Minister of Citizenship and Immigration), 2010 FC 55, at para 17, Lawal v Canada (Minister of Citizenship and Immigration), 2010 FC 558, at para 11; Sanchez v Canada (Minister of Citizenship and Immigration), 2011 FC 491, at para12).

[16]           This means that the role of the Court is not to reweigh the evidence that was before the RPD and substitute its own findings to those of the RPD.  Its role is to review the impugned decision and only interfere with it if it lacks justification, transparency and intelligibility and falls outside the range of possible, acceptable outcomes, defensible in fact and in law (Dunsmuir, at para 47).

III.             The Applicable Statutory Framework

[17]           In order to qualify as a Convention refugee within the meaning of section 96 of the Act, the Applicant had to establish that he was a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, was outside his country of nationality and was unable, or owing to that fear, unwilling to avail himself of the protection of that country.

[18]           With respect to his claim that he was also a person in need of protection within the meaning of section 97 of the Act, he had to establish that his removal to Armenia would subject him either to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture, or to a risk to his life or to a risk of cruel and unusual treatment or punishment.  In the latter case, he also had to establish, inter alia, that:

a.              He was unable, or because of that risk, unwilling, to avail himself of the protection of his home state;

b.             He would face such risk in every part of his home state; and

c.              The risk he fears is not one that is faced generally by other individuals in or from that state.

[19]           Sections 96 and 97 of the Act are reproduced in the Annex to this judgement.

IV.             Analysis

[20]           Mr. Avagyan claims that the RPD fatally erred in three ways: first, by applying the wrong legal test in determining whether he qualified as a person in need of protection within the meaning of section 97 of the Act; second by drawing unreasonable adverse credibility inferences as to his fear of persecution; and third, by concluding that he had not exhausted state protection in Armenia when the state itself was responsible for the March and June attacks.

A.                The Section 97 Test

[21]           Mr. Avagyan contends that section 97 of the Act requires the RPD to determine whether, on a balance of probabilities, there was a danger of torture or a risk of mistreatment upon returning to Armenia, not whether he would be tortured or mistreated.  He relies in this regard on the Federal Court of Appeal’s decision in Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR 239.

[22]           According to Li, above, the test envisaged by section 97 is whether it is more likely than not that Mr. Avagyan would personally be subjected to a danger of torture or to a risk to his life or to a risk of cruel and unusual treatment or punishment if he was to be returned to Armenia. The test was framed in these exact terms in the concluding paragraphs of the RPD decision. The fact that he RPD referred in its decision to the trial division judgment in Li (Li v Canada (Minister of Citizenship and Immigration), 2003 FC 1514, 243 FTR 261), is of no consequence as this judgment was upheld by the Federal Court of Appeal.

[23]           In Li, the Federal Court of Appeal underlined the importance of distinguishing the standard of proof and the test to be met under section 97 of the Act.  A person claiming protection under that provision is required to establish, on a balance of probabilities, that he or she will face the danger or risks described therein.  This involves two distinct steps.  First, the RPD has to assess the evidence adduced before it for the purposes of making its factual findings.  This assessment is to be done on a balance of probabilities, the standard of proof applicable.  Then, based on these findings, the RPD is called upon to determine whether it is more likely than not that this person would be personally subjected to a danger of torture or to a risk of mistreatment.  This is the legal test for determining whether the person is in need of protection within the meaning of section 97 (Li, above, at para 29).

[24]           Here, the RPD did not believe, on a balance of probabilities, that Mr. Avagyan was at risk in Armenia at the hands of government agents due to his anti-corruption activities and further found that, even if he was at risk, he had failed to rebut the presumption of state protection.  I see nothing in the RPD’s analysis and decision in this case which departs from the approach mandated in Li, above.

B.                 The Adverse Credibility Inferences

[25]           Mr. Avagyan challenges the reasonableness of the RPD’s finding that the attacks on him were not related to his anti-corruption activities and that his fear of persecution was unfounded.  In particular, he says it was unreasonable for the RPD to assess the credibility of his fear of persecution on the basis that he had continued to expose corruption for a period of five years following the Spring 2006 assaults.  In fact, he states that what a politically motivated person should have done in such circumstances is pure speculation coming from the RPD.

[26]           I do not read the RPD’s decision the same way.  The RPD accepted that Mr. Avagyan was involved in exposing corruption in the Ministry and that he was attacked in 2006 and 2011.  However, it found that Mr. Avagyan’s fear of being persecuted because of his anti-corruption activities was not credible for two main reasons: first, because he was able to pursue these activities for a period of five years after the 2006 events without repercussion and, second, because of his continued re-availment to Armenia during that period of time.

[27]           Re-availment has been considered by this Court as proper evidence for the RPD to analyze, consider and draw inferences from.  In Bromberg v Canada (Minister of Citizenship and Immigration), 2002 FCT 939, 224 FTR 176, at paras 23 and following, the Court provides a thorough analysis of the case law regarding re-availment and credibility findings.  In that case, the fact the refugee claimant had voluntarily return to Uzbekistan made the RPD doubt the truthfulness of her story.  The Court, in support of its conclusion that the RPD had not erred in inferring that the claimant’s subjective fear of persecution was undermined by the fact that she had voluntarily returned to Uzbekistan, said the following:

I think the applicant's argument does not accurately reflect the Refugee Division's finding. The Division found that it was understandable that the applicant would return to Moscow to help her son, but it noted that she also returned voluntarily to Uzbekistan. I note as well, as is indicated in the preceding recitation of the undisputed facts, that the applicant returned to Tashkent a second time in early December 1999 to pack her bags and say good-bye to her aunt. I am of the opinion that the Refugee Division was justified in casting doubt on the applicant's subjective fear in the face of her return to Uzbekistan.

In Cihal v Canada (M.C.I.) (1997), 126 FTR 198, Mr. Justice Rothstein held that the Refugee Division could find a lack of subjective fear in the fact that the claimant had returned to the country in regard to which he alleged a fear of persecution.

Madam Justice Tremblay-Lamer decided likewise in Ali v Canada (M.C.I.) (1996), 112 FTR 9 (FC), relying on Mr. Justice Rothstein's judgment in Bogus v Canada (M.E.I.) (1993), 71 FTR 260. Rothstein J. had concluded, at paragraph 5:

That he re-availed himself of the protection of Turkey on three occasions (counsel agreed that the facts are that he had only returned to Turkey twice) and that this reflects negatively on his alleged fears. The panel stated at p. 89:

In addition, the panel must take note that you did re-avail yourself, and there's no - there appears to be no conflict in your testimony in this area - of the protection of Turkey on no less than three occasions. You went back on three occasions. And this action itself must reflect negatively upon the voracity [sic] of your alleged fears, in our opinion, of returning now to Turkey.

In my opinion, it was open to the panel to assess the evidence and conclude that the applicant did not have a credible basis for his claim by reason of his actions or inactions that were inconsistent with having a subjective and objective fear of persecution in Turkey. Such findings are clear and unambiguous. [Emphasis added]

[28]           Mr. Avagyan’s re-availment during the period of 2006 to 2010 (of which there were 5), coupled with the fact he could pursue his anti-corruption activities during that period without repercussion, provided, in my view, sufficient grounds to the RPD to reasonably conclude that he had not established, on a balance of probabilities, his alleged fear of persecution due to these activities.

[29]           These findings were based, in my view, on permissible inferences reasonably and logically drawn from a group of facts established by the evidence, not from some speculative process applying subjective imagination (K.K. v Canada (Minister of Citizenship and Immigration), 2014 FC 78; Zacarias v Canada (Minister of Citizenship and Immigration), 2012 FC 1155, 419 FTR 135).

[30]           Mr. Avagyan claims these findings are irrelevant because his fear of persecution had not arisen at that time.  It only arose, he now contends before this Court, as a result of the June 2011 incident.

[31]           That position fails as it contradicts the evidence he gave before the RPD where he testified that he began fearing for his life following the 2006 incidents.  In these circumstances, it was reasonably open to the RPD to find that Mr. Avagyan’s re-availment, his continued anti-corruption work and the absence of consequences in the years following these incidents impacted on the overall credibility of his claim.

[32]           Even assuming his fear of persecution arose as a result of the June 2011 incident, the RPD found that there was insufficient evidence linking this incident to some desire on the part of government agents to make arrangements so as to put his life at risk because of his anti-corruption activities.  It found improbable in this regard that Mr. Avagyan would be sought after by government officials or persons affiliated with the government given the fact he and his group, the Working Group, were able to produce and publish findings to government officials for their review and possible corrective action.

[33]           The Respondent concedes that it was ill-advised on the part of the RPD to make a negative credibility finding due to the timing of Mr. Avagyan’s application for a Canadian visa at the end of June 2011.

[34]           However, I agree with the Respondent that this finding was not central to the rejection of Mr Avagyan’s claim.  In fact, the principal ground for the rejection pivots on the evidence adduced which did not establish the crucial fact that the government was targeting him.

[35]            The two medical reports, dated June 20, 2011 and September 8, 2011, do describe the injuries sustained by Mr. Avagyan, the date of his hospitalization (June 4, 2011), and the post-operative care that was needed following his discharge from hospital on June 22, 2011.  It was probably too much to ask Mr. Avagyan to produce reports describing the source of his injuries.  However, it was open to the RPD, in my view, to find that these reports did not assist Mr. Avagyan in establishing the central foundation of his claim.

[36]           Finally, Mr. Avagyan claims that the RPD, by requiring that it be “convinced” that government officials would be so concerned with his corruption criticisms that they would make arrangements to put his life at risk, imposed on him an excessive burden of proof.  I agree with the Respondent that this statement on the part of the RPD was part of the assessment of the facts of the case and not a statement regarding the applicable legal test.

[37]           As I have already indicated, the RPD applied, in my view, the correct legal test in determining whether Mr. Avagyan was a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the Act: it assessed, on a balance of probabilities, the evidence adduced by Mr. Avagyan for the purposes of making its factual findings; then it assessed whether these facts placed him at risk of persecution (Pararajasingham v Canada (Minister of Citizenship and Immigration), 2012 FC 1416).

[38]           When the decision is read as a whole, as it should be (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paras 14-15; Pena v Canada (Minister of Citizenship and Immigration), 2009 FC 616, 352 FTR 11 at para 70; Shire v Canada (Minister of Citizenship and Immigration), 2012 FC 97, at para 54; Stuart v Canada (Minister of Citizenship and Immigration), 2012 FC 1139, at para 28), the use of the word “convinced”, in the context in which it was used, does not suggest that a different legal test has been applied in this case.

[39]           I therefore see no reason to interfere with the RPD’s finding that Mr. Avagyan did not establish that it is more likely than not that he would be personally subjected to a danger of torture or to a risk of mistreatment if he were to return to Armenia.  This finding was, in my view, open to the RPD to make  based on the evidence adduced before it.  Again, the role of this Court is not to reweigh the evidence and to prefer its own finding to that of the RPD.  It is rather, to determine whether the RPD’s finding is transparent and intelligible and falls within the range of possible, acceptable outcomes, defensible in fact and in law.  I believe it does.

C.                State Protection

[40]           It is worth reminding that international refugee law was developed to serve as a “back-up” to the protection one should expect from one’s home state and that it was meant to come into play “only when that protection is unavailable, and then only in certain situations” (Canada (Attorney General) v Ward, [1993] 2 SCR 689, at p. 709).

[41]           As the Federal Court of Appeal has stated in Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, the principle that refugee protection is meant to be a form a surrogate protection to be invoked only in situations where the refugee claimant has unsuccessfully sought protections of his home state, must be the starting point of any refugee protection claim assessment (Hinzman, at para 41).  This is because there has to be an objective basis to a refugee protection claimant’s fear of persecution and that in establishing that objective basis, the pivotal step is to assess whether that person can be protected from the alleged persecution by his or her home state (Hinzman, at para 42).

[42]           In this regard, international refugee law provides that, absent a situation of complete breakdown of state apparatus, nations are presumed capable of protecting their citizens and that to rebut that presumption, “clear and convincing evidence” of the state’s inability to protect must be provided by the refugee protection claimant (Ward, above, at p. 724-725; Hinzman, above, at para 43-44).

[43]           Here, the RPD, assuming that Mr. Avagyan had established his alleged fear of persecution, found that he had not rebutted the presumption that Armenia would be able and willing to protect him from the alleged fear.

[44]           Mr. Avagyan says that the presumption is rebutted when the alleged persecutor is the state itself.  Here, he contends that both the March and June 2011 incidents involved the police and that, as a result, he was not required to exhaust all avenues of protection.

[45]           The Respondent argues that the facts of this case are important as the RPD found that Mr. Avagyan did go to the police and authorities, that the police and authorities appeared willing to act and, in fact, did take action by informing Mr. Avagyan that there were other avenues available to him with respect to his complaint regarding the March 2011 incident and also, by inviting him to provide further details as to the circumstances of the June 2011 incident.

[46]           The Respondent further refers to Hinzman, above, for the proposition that the presumption of state protection applies both where a refugee protection claimant alleges a fear of persecution by a non-state entity and to cases where the state is the alleged persecutor.

[47]           Indeed, there was evidence before the RPD of efforts made by the state authorities to protect Mr. Avagyan, both with respect to the 2006 incidents and 2011 incidents.  It is well settled also that state protection need not to be perfect and that failures of local law enforcement do not amount to a lack of state protection (Zhuravlvev v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 3, 187 FTR 110, at para 31; Kadenko v Canada (Minister of Citizenship and Immigration) (FCA), 124 FTR 160, [1996] FCJ No. 1376 (QL), at para 5; Alvarez v Canada (Minister of Citizenship and Immigration), 2012 FC 703 at para 19; Al-Awamleh v Canada (Minister of Citizenship and Immigration), 2013 FC 925 at para 26).

[48]           The burden of proof that rests on a refugee protection claimant to rebut the presumption of state protection will vary according to the level of democracy in his home state (Kadenko, above,, at p. 534 (FCA)).  In reaching that conclusion, I considered the country documentation that was before the RPD and the fact that Armenia is an emerging democracy.  I nevertheless find that, viewed through the lens of the reasonableness standard of review, the evidence before the RPD did not establish that Mr. Avagyan exhausted all avenue of state protection in Armenia before he elected to seek international protection.  Again, my task in not to determine whether this finding is right or wrong or well-founded or ill-founded in light of the evidence on record, but whether it is reasonable based on the principles established in Dunsmuir, above.  I find that it is.

[49]           No question was proposed for certification by the parties.

 

JUDGMENT

THIS COURT’S JUDGMENT is that:

1.                  The application for judicial review is dismissed.

2.                  No question is certified.

"René LeBlanc"

 

ANNEX

 

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-2232-13
STYLE OF CAUSE:	SARGIS AVAGYAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	June 23, 2014
JUDGMENT AND REASONS:	LEBLANC J.
DATED:	October 22, 2014

APPEARANCES:

Michael Crane	For The Applicant
Allison Engel-yan	For The Respondent

SOLICITORS OF RECORD:

Michael Crane Barrister & Solicitor Toronto, Ontario	For The Applicant
William F. Pentney Deputy Attorney General of Canada Toronto, Ontario	For The Respondent