OTTAWA, Ontario, July 17, 2006
Present: The Honourable Mr. Justice Teitelbaum
BETWEEN:
SEDA AMIRAGOVA, MANVELYAN GOAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Refugee Protection Division (RPD) dated November 29, 2005, according to which the applicants are not Convention refugees within the meaning of section 96 of the Immigration and Refugee Protection Act (Act) or persons in need of protection within the meaning of section 97 of the Act.
[2] Seda Amiragova (the main applicant or the applicant), an Armenian citizen, and her daughter Manvelyan Goar (together, the applicants), a Russian citizen, allege a fear of persecution in Armenia and in Russia. They also allege that they are also persons in need of protection.
[3] Ms. Amiragova was born in 1950 in Tbilisi, Georgia. Fearing for her life in Georgia because of [translation] “fanatical Georgian nationalists”, she relocated to Armenia in the beginning of 1980. That same year, she married Gaik Manvelyan, a famous composer in the USSR.
[4] A few years later, when the USSR was being dissolved, groups of fanatical nationalists attacked ethnic minorities in the USSR. The mafia appeared.
[5] The applicant comes from a very rich family. On June 23, 1991, the mafia murdered her father after trying to extort money from him. The police never arrested the killers.
[6] Significant amounts of money were extorted from the applicant’s family by the mafia. In spite of reports made by the applicant’s husband, the police never intervened.
[7] Towards the end of 1993, the family relocated to Russia because they were afraid of living in Armenia. The applicant wrote the following:
[translation]
Some time later, we realized that people in Russia and even the authorities were openly against persons of Caucasian descent like us, because of their xenophobia and because it was stated that persons of Caucasian descent were members of dangerous mafia groups.
(Applicant’s record, page 28, paragraph 14)
In recent years, assaults against persons of Caucasian descent have increased significantly. The aggressors are fanatical Russian nationalists, skinheads, and police officers from the shadowy “OMON” unit.
(Applicant’s record, page 28, paragraph 17)
[8] On August 8, 2004, Manvelyan and her friend were attacked and almost raped by a group of young Russians, who also made death threats against them. The police did not intervene even though the attackers were identified.
[9] On October 5, 2004, the applicant’s husband was injured in a violent assault. He died of a heart attack.
[10] On October 28, 2004, the applicant was beaten by young Russians. She could not claim protection in Russia because she had no status in that country. The applicants hid.
[11] The applicants left Russia on June 27, 2005. They made a claim for refugee protection in Canada on the following day, July 28, 2005.
[12] The RPD rejected the applicants’ claim for refugee protection and ruled that they could return to Armenia to live there. The RPD determined that it was unlikely that the applicants, who left Armenia more than 12 years ago, would be targeted by the mafia, which persecuted the applicant’s father and husband.
[13] In addition, the RPD concluded that the applicants could relocate to another region in Armenia without the mafia noticing. There was an internal flight alternative.
[14] On studying the evidence, the RPD was of the opinion that the applicants could obtain protection in Armenia if necessary.
[15] The RPD did not mention anything about the applicant’s credibility.
[16] The standard of review for the assessment of state protection is reasonableness simpliciter. In Avila v. MCI, [2006] F.C.J. No. 439, 2006 FC 359, dated March 20, 2006, Mr. Justice Luc Martineau wrote the following on this issue at paragraph 23:
[23] In Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, at paragraphs 9‑11, [2005] F.C.J. No. 232 (F.C.) (QL), Madam Justice Danièle Tremblay-Lamer held, after making an exhaustive review of the case law and of the pragmatic and functional tests, that the standard of review applicable to questions relating to state protection is that of reasonableness simpliciter. I entirely approve the analysis contained in paragraphs 9 to 11 of her decision and have come to the same conclusion. Therefore, if any of the reasons for dismissing the protection application can stand up to a somewhat probing examination, then the decision is not unreasonable and this Court should not intervene in the case: see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 55.
[17] The applicants made six submissions.
[18] First of all, Manvelyan is a Russian citizen. The RPD erred when it determined that Manvelyan could “reclaim” her Armenian citizenship through a mere formality. Manvelyan never had Armenian citizenship; therefore, it is not a question of reclaiming citizenship, but rather one of actually obtaining it.
[19] According to Exhibit ZZZ40326, cited by the RPD, a person cannot obtain Armenian citizenship if he or she is already a citizen of another country, such as is the case with Manvelyan. An Armenian citizen may only have Armenian citizenship. Therefore, Manvelyan must renounce her Russian citizenship to become an Armenian citizen. The RPD did not note this obligation.
[20] According to the applicants:
[translation]
This point is important because, if the panel is wrong about it being a mere formality for Manvelyan Goar to obtain Armenian citizenship, the panel should have studied the claim for refugee protection in relation to the situation in Russia, which it did not do.
(Applicant’s record, page 132, paragraph 15)
[21] Secondly, the RPD erred in determining that the applicants could seek protection in Armenia because they did not establish that Armenia was a totally corrupt country. The RPD applied the wrong test, because the test set out in Ward v. Canada, [1993] 2S.C.R. 689, is to the effect that “clear and convincing confirmation of a state’s inability to protect must be provided”.
[22] The applicants clearly established that the applicant’s father did not obtain state protection, because he was murdered in Armenia. The applicants fled to Russia.
[23] Thirdly, the RPD erred in determining that the applicants had an internal flight alternative in Armenia. The RPD split up 2003 Country Report, that is to say, its reading of the document was selective. The RPD referred to the document and then excluded parts of it which were relevant and favourable to the applicants.
[24] Moreover, the RPD erred concerning the protection available to the applicants in Armenia:
[translation]
The panel therefore made a mistake about the documentary evidence and substituted its own opinion for the evidence established by testimony.
(Applicant’s record, page 138, paragraph 38)
[25] In her supplementary memorandum, the applicant mentioned that the RPD did not ask her any questions about the conditions she would have to meet to obtain Armenian citizenship.
[26] Finally, the RPD erroneously questioned the applicant about her financial situation.
[27] The respondent made four submissions.
[28] First of all, the applicants want to live in Armenia. Ms. Amiragova is an Armenian citizen, and it would be a mere formality for her to obtain Armenian citizenship. The RPD rendered its decision on the basis of documentary evidence that was part of General Documentation on Armenia. This conclusion is not patently unreasonable. (See Manzi Williams, 2005 FCA 126).
[29] Secondly, it is improbable that the mafia will target the applicants on returning to Armenia. At the hearing before the RPD, the applicants:
[translation]
… alleged that, because of their respective names, they would be quickly identified and would suffer the same fate as the father and the husband of the principal applicant.
(Respondent’s written submissions, page 5, paragraph 16).
This Court must assess the soundness of the final decision but does not have to assess the soundness of each of the RPD’s inferences: Sinnathamby v. MCI, 2001 FCT 473.
[30] Thirdly, the applicants may obtain state protection. According to Ward, supra, a state is presumed to be able to protect its citizens unless there is clear and convincing evidence to the contrary.
[31] The RPD is not required to believe all documentary evidence favourable to the applicant:
[translation]
Therefore, in light of the evidence and the case law, the respondent submits that, notwithstanding what the applicants claim in their written submissions, they nevertheless did not show with clear and convincing evidence that Armenia would be unable to give them the necessary protection if the mafia were to persecute them if they eventually returned to Armenia.
(Respondent’s written submissions, page 10, para. 29)
[32] Finally, the applicants have an internal flight alternative. The applicants lived in Yerevan before leaving Armenia and, upon their return, could relocate to another city where there would be few chances of being discovered by the mafia. Because they are very prosperous, the applicants could purchase a house in Armenia. According to the Federal Court of Appeal in Rasaratnam v. MEI, [1994] 1 FC 589, international protection is only available if a country is unable to offer protection throughout its territory.
[33] I will begin my analysis with the main issue in this case, that is, state protection.
[34] I will then deal with the issue of the obligation of giving sufficient reasons for a decision in accordance with the principles in VIA Rail Canada Inc. v National Transportation Agency, [2001] 2 F.C. 25, [2001] F.C.J. No. 1685.
[35] I again cite Martineau J. in Avila, supra, about the legal principles concerning state protection:
[26] On the question of government protection, the Ward test expressly requires careful review of the fear of persecution from the standpoint of the refugee protection claimant and the objective conditions of the country in question. A subjective fear of persecution, coupled with the inability of state to protect the claimant, gives rise to the presumption that the fear is justified. The risk that this presumption will be too broad in its application is limited by the requirement of clear and convincing evidence that the state is unable to provide protection. In order to rebut the presumption that a state can protect its nationals, a claimant may put before the Board testimony of similarly situated individuals. He can also rely on the documentary evidence of record. He can, of course, relate his own experience (Ward, supra, at paragraphs 49, 50 and 52).
[27] In order to determine whether a refugee protection claimant has discharged his burden of proof, the Board must undertake a proper analysis of the situation in the country and the particular reasons why the protection claimant submits that he is “unable or, because of that risk, unwilling to avail [himself] of the protection” of his country of nationality or habitual residence (paragraphs 96(a) and (b) and subparagraph 97(1)(b)(i) of the Act). The Board must consider not only whether the state is actually capable of providing protection but also whether it is willing to act. In this regard, the legislation and procedures which the applicant may use to obtain state protection may reflect the will of the state. However, they do not suffice in themselves to establish the reality of protection unless they are given effect in practice: see Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and Immigration), 2003 FCTD 429, [2003] 4 F.C. 771 (F.C.T.D.).
[28] No state which professes democratic values or asserts its respect for human rights can guarantee the protection of each of its nationals at all times. Therefore, it will not suffice for the applicant to show that his government was not always able to protect persons in his position (Villafranca, supra, at paragraph 7). Nonetheless, though government protection does not have to be perfect, some protection must exist the minimum level of which does not have to be determined by the Court. The Board may in the circumstances determine that the protection provided by the state is adequate, with reference to standards defined in international instruments, and what the citizens of a democratic country may legitimately expect in such cases. In my opinion, this is a question of fact which does not have to be answered in absolute terms. Each case is sui generis. For example, in the case of Mexico, one must look not only at the protection existing at the federal level, but also at the state level. Before examining the question of protection, the Board must of course be clear as to the nature of the fear of persecution or risk alleged by the applicant. When, as in this case, the applicant fears the persecution of a person who is not an agent of the state, the Board must inter alia examine the motivation of the persecuting agent and his ability to go after the applicant locally or throughout the country, which may raise the question of the existence of internal refuge and its reasonableness (at least in connection with the analysis conducted under section 96 of the Act).
[29] Accordingly, when the government is not the persecuting agent, and even when it is a democratic state, it is still open to an applicant to adduce evidence showing clearly and convincingly that it is unable or does not really wish to protect its nationals in certain types of situation: see Annan v. Canada (Minister of Citizenship and Immigration, [1995] 3 F.C. 25 (F.C.T.D.); Cuffy v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1316 (F.C.T.D.) (QL); Elcock v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438 (F.C.T.D.) (QL); M.D.H.D. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 446 (F.C.T.D.) (QL). It should be borne in mind that most countries might be prepared to try to provide protection, although an objective assessment could establish that they are not in fact able to do so in practice. Further, the fact that the applicant must place his life at risk in seeking ineffective state protection, simply in order to establish such ineffectiveness, seems to be contrary to the purpose of international protection (Ward, supra, at paragraph 48).
[36] The RPD wrote the following:
The panel assessed the level of the risk that they would be persecuted by the individuals who allegedly caused the death of Ms. AMIRAGOVA’s father and extorted money from her husband. When questioned on this subject, the claimants alleged that, because of their respective last names—Ms. AMIRAGOVA bears the name of an assumedly rich man, and her daughter, that of a famous composer—they would quickly be identified and would suffer the same fate as Ms. AMIRAGOVA’s father and husband. They also alleged that, the state apparatus being corrupt, they would not be able to obtain protection from the authorities. The panel does not agree with the claimants’ conclusions . . . .
First of all, it is unlikely that the mafia would find out about the claimants’ return.
(Applicants’ record, page 9)
[37] The RPD did not give any reasons in support of its opinion that “it is unlikely that the mafia would find out about the claimants’ return”.
[38] The RPD continued as follows in its brief two‑page decision:
Furthermore, in general, the documentary evidence does not allow the panel to conclude that the state apparatus is totally corrupt and that the claimants, if threatened, would be unable to obtain state protection.
(Applicants’ record, page 9).
[39] Once again, the RPD did not give any reason why the applicants did not rebut the presumption mentioned in Ward, supra, that each State can protect its citizens.
[40] The RPD did not make any analysis of State protection. This is a patently unreasonable error and the Court must intervene because State protection is an issue at the heart of this case.
[41] It seems obvious to me that the RPD did not support its conclusions.
[42] The RPD made a patently unreasonable error as a result of the insufficiency of the reasons concerning State protection. This conclusion settles the matter of the application for judicial review.
[43] In VIA Rail, supra, the Federal Court of Appeal ruled on the matter of insufficiency of reasons. This case also applies in an immigration context: Bhandal v. MCI, [2006] F.C.J. No. 528, 2006 FC 427.
[44] According to VIA Rail, supra, the sufficiency of the reasons depends on the circumstances of each case. The panel must mention its conclusions of fact and the main elements of evidence on which it renders its decision, deal with the main issues, explain its reasoning and examine the main relevant factors.
[45] I am convinced the RPD did not do so.
[46] According to VIA Rail, supra, the RPD has the obligation to properly support its decision. The Federal Court of Appeal wrote the following on this point:
[17 The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision-maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. (Reference omitted).
[18 Reasons also provide the parties with the assurance that their representations have been considered.
[19 In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision-maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.
[20 Finally, in the case of a regulated industry, the regulator’s reasons for making a particular decision provide guidance to others who are subject to the regulator’s jurisdiction. They provide a standard by which future activities of those affected by the decision can be measured.
[21 The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., “[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons.”
[22 The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out and must reflect consideration of the main relevant factors. (Citations omitted)
[47] Therefore, on the basis of these explanations, I conclude that the RPD did not meet its obligation.
[48] As far as the issue Manvelyan’s Armenian citizenship is concerned, the RPD read document ZZZ40326 only selectively. According to this document, a person cannot be a citizen of Armenian if he or she holds citizenship of any other country. The RPD never mentioned that Manvelyan would have to renounce her Russian citizenship to obtain Armenian citizenship.
[49] It is settled law that the RPD must assess all the evidence and documents together and not in parts in isolation from each other: Owusu v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 33 (F.C.A.); Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.).
Certified true translation
Michael Palles
JUDGMENT
The application for judicial review is allowed because of the insufficiency of the reasons given by the RPD. The decision dated November 29, 2005, is set aside, and the applicants’ file will be returned to the RPD for rehearing and redetermination before a differently constituted panel.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7535-05
STYLE OF CAUSE: Seda Amiragova, Manvelyan Goar v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE TEITELBAUM
APPEARANCES:
|
Michel LeBrun
|
FOR THE APPLICANTS |
|
Annie Van Der Meerschen
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Michel Le Brun Montréal, Quebec
|
FOR THE APPLICANTS |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |