Date: 19991021
Docket: IMM-227-99
BETWEEN:
KATERINA IAKOUBOVA
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for leave and judicial review of a decision of the Refugee Division, dated December 15, 1998, in which it was determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is Assyrian and a Christian. She lived in Abkhazia, Georgia. In 1994, war broke out between Georgia and Abkhazia, over Abkhazia"s desire to separate.
[3] In April 1995, the applicant"s brother was killed by three Moslem nationalist fanatics at the family home while he was trying to protect the applicant. The parents allegedly wanted to file a complaint with the local authorities, but the department of the interior did not let them. The family moved after the funeral because the abuse continued.
[4] In October 1996, some Abkhazians allegedly showed up at the applicant"s home yelling [translation ] "Christians get out of here" and "Death to Assyrian jackals." They beat the father who had to be hospitalized. Meanwhile, the applicant and her mother took refuge with friends.
[5] In 1997, the applicant left Abkhazia to seek refuge in Russia, where she applied for Russian citizenship. The authorities turned down her application telling her to leave Russia and go south.
[6] After being threatened by youths wearing black uniforms with a Nazi swastika, the applicant notified the police, but they apparently told her that non-citizens could not be helped.
[7] After being threatened by the nationalist group Omon, who called her "black skinned" and other such epithets, the applicant left Russia on April 23, 1998, and arrived in Canada on April 28, 1998, where she claimed refugee status that same day.
[8] She claims to have a fear of persecution in Abkhazia by reason of her Christian religion and Assyrian nationality.
DECISION OF THE PANEL
[9] The panel noted that the applicant had an internal flight alternative in Georgia. Given that the applicant had not renounced her Georgian citizenship in writing within three months after the Citizenship Act was passed, she remained a Georgian citizen.
[10] The applicant"s testimony seemed credible to the panel. It was convinced that the violence against the applicant was based solely on her Assyrian nationality. According to the "Human Rights Watch World Report (1998)," the problems in Abkhazia continue and consist mainly of torture and abuse by the police as well as violations of the rights of refugees and displaced persons. The panel found that the fear of persecution is confined to Abkhazia.
[11] The panel pointed out that approximately 40,000 refugees from Abkhazia have returned to Georgia. It concluded that it is not unreasonable for the applicant to move from Abkhazia to another part of Georgia. Furthermore, the Georgian Constitution protects freedom of religion.
SUBMISSIONS OF THE APPLICANT
[12] The applicant argues that the panel erred in law in finding that she had an internal flight alternative for the following reasons:
| 1. The applicant"s testimony did not establish the existence of an internal flight alternative, given that she was a national of a secessionist Abkhaz state at war with Georgia. |
| 2. The documentary evidence cited by the panel does not in any way contradict the applicant"s testimony with respect to her precarious legal status in Georgia and the lack of protection from the Georgian authorities. Excerpts from the "Human Rights Watch Report (1998)" establish that the Georgian authorities have been responsible for severe ethnic cleansing during the armed conflict with Abkhazia, which corroborates the applicant"s testimony regarding the serious possibility of persecution she could face because she comes from Abkhazia and she is not of Georgian ethnic nationality. |
| 3. The certificate of identity issued by the Georgian authorities on Russian Federation territory does not in any way contradict the applicant"s testimony concerning her precarious legal status in Georgia and lack of protection from the Georgian authorities. The applicant claims that in theory and in practice she does not enjoy all the privileges inherent in Georgian citizenship, since she could not obtain a passport instead of the certificate of identity from the Georgian authorities. |
SUBMISSIONS OF THE RESPONDENT
[13] The Refugee Division did not err in finding that the applicant was not a refugee because she had an internal flight alternative in the southern part of Georgia. This is a finding of fact which the Refugee Division is entitled to make.
[14] The Refugee Division determined that an internal flight alternative was available to the applicant since all the incidents forming the basis of her fear of persecution occurred in Abkhazia, and the documentary evidence reveals that refugees from Abkhazia found refuge elsewhere in Georgia.
[15] The respondent claims that it is up to the applicant to show, on the balance of probabilities, that she faced a serious risk of persecution in the place identified as an internal flight alternative and that it would be unreasonable for her to take refuge there.
[16] The applicant only claims that the Refugee Division disregarded the fact that people from Abkhazia have problems in Georgia and are not welcome there given the current situation between these two territories. However, no evidence was put forward to support this claim. The applicant did not discharge her burden of proof.
ISSUE
[17] Did the Refugee Division err in law by concluding that the applicant had an internal flight alternative?
ANALYSIS
[18] The Federal Court of Appeal indicated in Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706, that a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA.
[19] The Court then established the test for assessing an internal flight alternative:
| 1. The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which there is an IFA. |
| 2. Conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there. |
| 3. The question of an IFA must be expressly raised at the hearing by the refugee hearing officer or the Board and the claimant afforded the opportunity to address it with evidence and argument. |
[20] In the instant case, the Refugee Division pointed out that the applicant was a Georgian citizen and that she could seek refuge in Georgia. It examined the evidence put forward and concluded that the fear of persecution was confined in Abkhazia.
[21] The Court stated in Thirunavukkarasu v. Minister of Employment and Immigration, [1994] 1 F.C. 589, at page 595:
. . . in order to prove a claim to Convention refugee status, as I have indicated above, claimants must prove on a balance of probabilities that there is a serious possibility that they will be subject to persecution in their country. If the possibility of an IFA is raised, the claimant must demonstrate on a balance of probabilities that there is a serious possibility of persecution in the area alleged to constitute an IFA.
[22] The Refugee Division asked the applicant to explain her fear of being in Georgia.
[23] The following is an excerpt of the transcript concerning this issue:
| [translation] COUNSEL |
| Q: So, I think that . . . that I have about one more question. If madam, you had to return to Georgia, to Georgian territory outside of Abkhazia, what . . . what would you fear? |
| R: I am afraid for my life. |
| Q: Could you explain your fears? |
| R: It is because the Georgians hate everyone who lives in Abkhaz territory. I left Abkhazia because . . . they killed my brother there for one . . and they beat my brother almost to death. Quite simply I am afraid to go there. I am very . . . I am afraid. |
| Q: That is very understandable for Abkhazia, but now can you focus on Georgia, the territory that is not occupied by the Abkhaz government. |
| THE BOARD MEMBER |
| Q: Tbilissi for example? What would you fear about going to Tbilissi for example? |
| R: There they will know that I was born in Abkhazia and that I am also Assyrian. I am afraid. And they will . . . I will end up in prison. I am afraid of that. I am simply afraid for my life. |
| . . . |
| Q: Madam, can the average Georgian put you in prison? |
| R: Yes, if you enter their territory, yes, like I . . . I am going to do. You know what happened there when . . . Before, there were many people who reported others. For example, if they knew that you were not Georgian, they did not . . . you would be reported and those people would end up in prison in my country. Thus, the people who fled . . . the Greeks fled, the Jews, they left, the Greeks went to Greece, the Jews went to Israel. You see? If I had a homeland, I would . . . |
| Q: But |
| R: . . . I would have gone to Assyria. |
| Q: . . . but Madam, where are you getting your information? Because we have information that contradicts what you are telling us. |
[24] The applicant"s testimony about her fear remained vague, and she did not introduce any tangible evidence to contradict the documentary evidence before the panel.
[25] The evidence before the Division indicated that approximately 40,000 refugees from Abkhazia have returned to Georgia. The Division also noted that the country"s Constitution protected freedom of religion.
[26] The Refugee Division concluded, in light of the evidence adduced, that the applicant does not have a fear of persecution in Georgia and that it was not unreasonable for the applicant to seek refuge there.
[27] The applicant did not discharge her burden of proof.
[28] For these reasons, the application for judicial review must be dismissed.
[29] Neither counsel submitted a question to be certified.
Pierre Blais Judge
OTTAWA, ONTARIO
October 21, 1999
Certified true translation
Monica F. Chamberlain
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-277-99
STYLE OF CAUSE: KATERINA IAKOUBOVA
v. THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 13, 1999
REASONS FOR ORDER OF BLAIS J.
DATED: OCTOBER 21, 1999
APPEARANCES:
ALAIN JOFFE FOR THE APPLICANT
CAROLINE DOYON FOR THE RESPONDENT
SOLICITORS OF RECORD:
NADLER, JOFFE FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA