Date: 20000406
Docket: IMM-926-99
BETWEEN:
HAKIM MOUAZER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "Board") whereby the Board determined that the applicant was not a Convention refugee.
[2] The applicant is an Algerian citizen. He claims refugee status on the basis of a well-founded fear of persecution in Algeria by reason of his race as a member of the Berber ethnic group.
[3] The applicant alleges a number of reasons for his persecution. He claims that when he was a student at the University of Tizi Ouzou, he participated in a student strike complaining of the mistreatment of Berbers who were prevented from studying the Berber language at school. He alleges that many Berbers were expelled from University, killed or otherwise punished at that time.
[4] In 1995 due to continued unrest and fear of the Islamic extremists, a friend was beheaded in his neighbourhood.
[5] The applicant alleges that since 1993 his brother, a prosecutor in Boukader, has received a number of death threats from Islamic fundamentalists that resulted in an assassination attempt on his life in 1997. The death threat caused the applicant"s entire family to move from Boukader to a suburb of Tizi Ouzou. During that period, the applicant moved to Oran to complete a degree in electrical engineering.
[6] The applicant alleges that his ethnic background as a Berber combined with the Islamic fundamentalists" threats to those that enter the military, as well as the potential reprisals from the Algerian government if he did not report for military service caused him great concern. The applicant states that he does not want to be placed in a situation where he would have to kill unarmed citizens or otherwise commit acts against humanity.
[7] In sum, the applicant alleges that he fears persecution if he were to return to Algeria due to general difficulties that Berbers are exposed to, his relationship with his brother, now a judge targeted by Islamic extremists, the consequences of military evasion that may result in prosecution, imprisonment, the fulfilment of two years of military service and reprisals by Islamic extremists against those who undertake military service.
[8] Generally, the Board found the applicant to be a credible witness. In essence, the Board concluded that the applicant had not demonstrated that there was more than a mere possibility that he would suffer persecution, either due to his relationship with his brother or due to his treatment by authorities for evading military service or by reprisals by the Islamic extremists for enlisting in military duty.
[9] In respect to persecution by the Algerian government as a result of military evasion, the Board held that punishment resulting from evading the law did not constitute persecution. Whereas, on the issue of whether Islamic extremists are attacking those who enlist, the Board stated:
| The issue of whether the Islamic extremists are attacking those who enlist or are conscripted again bears little corroboration in the documentary evidence . Though statements have been made by Islamic forces, there is no evidence that such threats have been carried out, in a systematic and continued fashion that would be termed persecutory by international standards, by either the Islamic extremist forces or by the Algerian military.1 |
[10] In addition, the Board stated that no documentary evidence suggests that the applicant would be placed in combat position were he to enlist in military service.
[11] The applicant first submits that the Board failed to exercise its jurisdiction in failing to address the applicant"s fear of persecution in relation to his relationship with his brother who is a judge. I disagree.
[12] In its reasons the Board clearly addresses the applicant"s fear of persecution when it states:
| The panel must be guided by UNHCR documentary evidence that states that care must be taken in differentiating between Algerian political refugee claimants who have legitimate fears based on who they are and what they have done. In my view, this claimant does not fall into that category; however, his brother might.2 |
[13] It is clear, that the Board did indeed address the applicant"s fear of persecution due to his relationship to his brother, a judge targeted by Islamic fundamentalists. I am thus of the view that the Board did not commit a reviewable error by not detailing all of the evidence on that point in its reasons.
[14] Counsel for the applicant further submitted that persecution would result from punishment for military evasion, namely unfair trial and detention, and thus argues that the Board erred in failing to view these consequences for military evasion as persecutory in nature.
[15] In Rajudeen v. MEI3 the Federal Court of Appeal clearly set out that persecution constitutes "an affliction with repeated acts of cruelty or a particular course or period of systematic infliction of punishment".4
[16] In the case at bar, I am of the opinion that the Board applied the correct definition of persecution when it referred to acts of a "systematic and continued fashion".5 I believe that it was open for the Board to conclude that the applicant would not suffer persecution for avoiding military service given that punishment for evasion of military service is an ordinary law of general application and that the applicant failed to demonstrate that the law was either inherently or somehow persecutory as elaborated in Zolfagharkhani v. MEI.6
[17] Finally, with respect to the applicant"s argument that the Board made an erroneous finding of fact made without regard to the material before it, I agree with counsel.
[18] The Board states that there is no documentary evidence later than 1996 which indicates that Islamic extremists are targeting young men to discourage them from performing obligatory military service. However, the "Country Reports on Human Rights Practice for 1997" states that in some cases victims [of Islamic extremists] apparently were murdered merely because they were young men of draft age eligible for military service.7
[19] Further, I agree with counsel for the applicant that there was no evidence that the applicant would be treated differently because of his technical expertise as an electrical engineer. On the contrary, the documentary evidence mentioned that since the 1980s such non military service assignment decreased in frequency and became a minority.8
[20] These errors of facts were material to the Board"s determination. In fact, they go directly to the heart of the applicant"s fear of persecution.
[21] Consequently, the application for judicial review is granted and the matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 6, 2000.
__________________
1 Decision of the Board, Applicant"s Record at pages 10-11.
2 Decision of the Board, Applicant"s Record at pages 11-12.
3 (1984) 55 N.R. 129 (F.C.A.).
4 Ibid. at pages 133-34.
5 Decision of the Board, Applicant"s Record at page 11.
6 [1993] 3 F.C. 540.
7 Applicant "s Record, tab 11, at page 113.
8 Applicant "s Record, tab 10, at page 108.
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