Date: 20021105
Docket: IMM-156-02
Neutral citation: 2002 FCT 1142
BETWEEN:
NINO DEVRISHASHVILI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant, Nino Devrishashvili, is a twenty-five year old unmarried citizen of Georgia who claims a well-founded fear of persecution on the basis of political opinion and membership in a social group (a member of the family of a political activist, her father). In its decision dated December 5, 2001, the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), now the Refugee Protection Division (RPD), determined that the applicant is not a Convention refugee. Ms. Devrishashvili seeks judicial review of that decision pursuant to section 74 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and transitional provision section 348 of the Immigration and Refugee Protection Act Regulations, SOR/2002-227 (the Regulations) and alleges that the CRDD erred in its determination.
[2] The applicant's father was a political activist and supporter of former Georgian President Gamsakhurdia. When the latter was ousted in 1992, he and his supporters were targeted and the applicant's father (the father) was forced to flee the country. The father returned in 1996 and established a pharmacy with his daughter, the applicant's sister. He did not participate in political activities. From 1992 until 1994, armed men came looking for him and threatened harm if his whereabouts were not disclosed.
[3] The applicant studied international relations at university and participated in political activities. On August 3, 1995, she was kidnapped, detained and sexually molested by students who supported the government. The perpetrators referred to her father during this incident. The applicant reported the matter to the police but no action was taken. In February, 1999, an arsonist set the pharmacy on fire. In September of that year, the apartment where the applicant's family lived was firebombed.
[4] In August, 1999, the applicant obtained work as an intern with the Ministry of Foreign Affairs. Internships were unpaid, six-month positions. Those who performed well would eventually receive employment and diplomatic status. Despite her performance, the applicant did not attain that level. She worked as a clerical assistant and translator until her departure from Georgia in May, 2000. She alleged that she could only obtain a low-level position because she was considered an opponent to the government.
[5] In February, 2000, the applicant received threatening phone calls. On May 30, 2000, she arrived in Canada and claimed refugee status. On May 26, 2001, her parents were among the participants injured when security forces invaded a demonstration in Georgia.
[6] The findings of the CRDD can be briefly summarized as follows:
- the father was known to be politically active and was targeted by pro-government supporters;
- both of the 1999 fires were directed at the father and not at the applicant or other members of her family;
- the applicant was politically active at university; the August, 1995 incident had occurred and was attributable to her political involvement and that of her father;
- the 1995 incident was the only instance of serious harm to the applicant; it occurred six years earlier and the applicant's profile was not such that she would be seen as a threat to the government;
- the applicant's mother and sister had not been targeted and the father's activity had not created problems for them;
- there had been no further reprisals despite the father's presence in Georgia;
- although the applicant's position with the Ministry was low-level, it was unlikely that a targeted opponent of government would be afforded such a position.
[7] The CRDD concluded that there was no reasonable chance that the applicant would face persecution should she return to Georgia.
[8] The applicant alleges a number of errors by the board. First, she submits that the CRDD erred in law by requiring personal targeting. She argues that the board, having found that the 1995 incident occurred, cannot then, on the other hand, find that personal targeting did not exist.
[9] While personal targeting is not required, refugee claimants must nonetheless establish a link between themselves and persecution for a Convention reason. They must be targeted for persecution in some way, either personally or collectively: Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.). Here, the CRDD, on the evidence before it, determined that the applicant had not established herself as a person similarly situated to people who would face a reasonable chance of persecution for a Convention ground. There was insufficient evidence that members of her family were being persecuted because they were related to her father. One cannot be deemed to be a Convention refugee because one has a relative who is being persecuted. There has to be a clear nexus between the persecution that is being levelled against one of the family members and that which is taking place against the others. The family can only be considered to be a social group in cases where there is evidence that the persecution is taking place against the family members as a social group: Al-Busaidy v. Canada (Minister of Employment and Immigration) (1992), 139 N.R. 208 (F.C.A.); Casetellanos v. Canada (Solicitor General), [1995] 2 F.C. 190 (T.D.); Addullahi v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 150 ; Lakatos v. Canada (Minister of Citizenship and Immigration) 2001 FCT 408, [2001] F.C.J. No. 657.
[10] There was also insufficient evidence that the applicant would face persecution because of her own past political activity given that she had not experienced persecution for a Convention reason since 1995 and had worked for the government from August, 1999 until her departure from Georgia in May, 2000. The board did consider whether the applicant was a member of a group of political activists which was collectively targeted and determined that she was not. The CRDD did not narrow its consideration to whether the applicant was a target personally.
[11] Next, the applicant argues that the CRDD erred by implying that the applicant required a high political profile in order to be a Convention refugee. In this regard, the applicant refers to the August, 1995 incident and says that the board, having accepted that the incident occurred as a result of her activity in the student group as well as her relationship with her father, cannot contradict its finding. Further, submits the applicant, the documentary evidence does not lend support to such a conclusion.
[12] The CRDD, in its decision, emphasized that the August, 1995 incident was the only one directed at the applicant. It found it to be an isolated incident. The documentary evidence, for the most part, reveals that targeted individuals are more publicly visible than the applicant. There are, however, references to police assaults on political demonstrators with lower profiles. The applicant was not involved in such protests. The difficulty confronting the applicant is that she failed to establish that she is in a similar situation to those described as being political targets in the documentary evidence.
[13] The applicant also alleges that the CRDD erred in finding that her mother and sister were not targeted because they had not experienced problems and that it erred in finding that the attacks were directed only against the father. It was, in my view, open to the board to conclude as it did. The only evidence indicating that the applicant's sister or mother were targeted was that of the incidents the board found to be directed at the father. The father was the only person in the pharmacy when it was set on fire. The fact that the mother and sister may have incurred consequences because of the father being targeted is distinct from being targeted themselves. I do not find the conclusion that the applicant's family did not constitute a particular social group to be so unreasonable as to warrant the Court's intervention. The conclusion was based on findings that the applicant had not been targeted since 1995 and neither her mother nor her sister were targeted at all. My earlier comments regarding nexus are applicable to this argument.
[14] The applicant contends that the CRDD erred in finding that no further actions had been taken against her family since September, 1999 and refers to her parents' participation in a May 2001 demonstration when they were beaten and required medical attention. This particular demonstration was a celebration of the holiday of independence. The applicant's parents were part of a large group in attendance when there was a clash with police and security. Many people were injured. There was nothing in the evidence to suggest that either of her parents were specifically targeted. The conclusion of the CRDD, on the evidence, was reasonable.
[15] The applicant alleges that the CRDD failed to consider that she secured her position with the government because of a relative in the government party and because of her ability to translate Japanese. She argues that the board ought to have considered that explanation before concluding that her position supported a finding that she did not have a well-founded fear of persecution. I do not regard the conclusion that it is unlikely that a persecuting party would hire a perceived political opponent as being unreasonable. This argument is without merit.
[16] The applicant gave evidence that she was prompted to leave Georgia after she received death threats in February, 2000 and submits that the board erred when it assigned weight to the delay factor. She argues that in cases where all other elements of the definition have been satisfied, it is an error of law to find that a lack of subjective fear could negate the claim.
[17] The applicant, in this respect, falls short of establishing that all other elements of the definition have been satisfied. Further, the board did consider the threatening phone calls but did not find that sufficient explanation had been provided as to why the applicant did not leave earlier. The CRDD found the August 1995 incident to be the last incident of persecution, thus the delay was six years. The finding in relation to the phone calls was not the crux of the decision. Rather, it simply supported the previous conclusion that there was not a reasonable chance that the applicant would face persecution. Delay is a factor that may be considered regarding subjective fear. It was open to the board to infer that the applicant would have left Georgia earlier if she believed the September 1999 fire bombing was directed toward her.
[18] The final argument related to the applicant's testimony that if she returned to Georgia, she would be politically active against the current regime and in view of the documentary evidence, which shows that political opponents face serious persecution in Georgia, the CRDD erred. The test for determining whether or not a claimant is a Convention refugee is forward looking. The board, says the applicant, ought to have mentioned the documentary evidence and it committed a reviewable error of law by ignoring it.
[19] The CRDD found that the applicant was politically active prior to her departure from Georgia but had not experienced any incidents of persecution since 1995. Regarding the potential for future persecution it stated "[t]he panel concludes that should the claimant return to Georgia, there is no reasonable chance that she would face persecution for her political beliefs". The applicant must establish a nexus between his or her personal situation and the general human rights situation in the country from which the applicant is fleeing. Convention refugee status does not exist at large so that anyone from a country with an unfavourable human rights record is automatically determined to be a Convention refugee. The claimant must adduce some evidence to indicate that violations of human rights established by documentary evidence threaten him or her upon return. Absent such evidence, an assessment of documentary evidence is not required: Kofitse v. Canada (Minister of Citizenship and Immigration) 2002 FCT 894, [2002] F.C.J. No 1168; Djouadou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1568 (F.C.T.D.). Moreover, it is settled law that the board is presumed to have considered all of the evidence before it: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). The documentary evidence here does not contradict the findings of the CRDD.
[20] The basis for the CRDD decision was that the applicant failed to establish a nexus with respect to either of the grounds claimed. For the reasons given, I find that the conclusion of the CRDD was reasonably open to it on the evidence before it. The application for judicial review is dismissed.
[21] This matter does not raise a serious question of general importance. Counsel did not suggest a question for certification. No question is certified.
___________________________________
Judge
Ottawa, Ontario
November 5, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-156-02
STYLE OF CAUSE: NINO DEVRISHASHVILI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, OCTOBER 31, 2002
REASONS FOR ORDER
BY: LAYDEN-STEVENSON J.
DATED: TUESDAY, NOVEMBER 5, 2002
APPEARANCES BY: Mr. Jack Davis
For the Applicant
Ms. Alexis Singer
For the Respondent
SOLICITORS OF RECORD: Mr. Jack Davis
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent