Docket: IMM-3994-11
Citation: 2012 FC 222
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, February 17, 2012
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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FAZIA TOUILEB OUSMER
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act), for judicial review of a decision
dated May 24, 2011, in which the Refugee Protection Division of the
Immigration and Refugee Board (the panel) determined that the applicant was
neither a refugee nor a person in need of protection under sections 96 and
97 of the Act.
I.
Background
A. Facts
[2]
Ms. Fazia
Touileb Ousmer (the applicant) is a 60‑year‑old Algerian citizen.
The applicant is Muslim, separated from her husband and the mother of four
children.
[3]
The
applicant alleges that she fears persecution in Algeria because she is a single
woman and because of her family situation. Specifically, her oldest daughter is
married to a Jewish man and lives in France.
[4]
The
applicant states that her problems began in 2006 when her daughter told her
that she had become pregnant by her Jewish spouse outside of marriage. The
applicant says that this news was not well received by her family because Islamic
law punishes sexual relations outside marriage, and a Muslim woman is prohibited
from marrying a non‑Muslim.
[5]
The
applicant’s difficulties became apparent when her daughter visited her in
October 2006 and October 2007. As a result of her daughter’s situation and
because the applicant refused to disown her, the applicant claims that she was
considered disgraced and was treated like a pariah by her neighbours and her
family. She was insulted, ostracized, received death threats and was physically
attacked; her house was burned down and her dog was poisoned and beaten.
[6]
The
applicant obtained a Canadian visa and arrived in Canada—where two of her
children live—on or about September 19, 2008. She applied for refugee
status in the weeks following her arrival.
[7]
The
panel heard her application on April 1, 2011.
B. Impugned
decision
[8]
The
panel found that the applicant was neither a refugee nor a person in need of
protection under sections 96 and 97 of the Act because an internal flight
alternative (IFA) existed and some parts of her account were not credible.
[9]
In
its decision, the panel indicated that it took into consideration the
Chairperson’s Guidelines concerning “Women Refugee Claimants Fearing Gender‑Related
Persecution.”
[10]
Although
the panel noted that the applicant had demonstrated serious difficulties, the
panel found that the applicant had exaggerated the extent, frequency and
seriousness of these problems in order to embellish her claim. The panel
described some of the applicant’s explanations as unreasonable and inconsistent
with her actions. Furthermore, the panel observed that the applicant’s
explanations changed constantly in the course of her testimony. Consequently,
the panel made certain negative findings about the applicant’s credibility.
[11]
The
panel found that the isolation and exclusion experienced by the applicant because
of her status as a divorced woman did not constitute harm that was sufficiently
serious or repetitive to establish a form of persecution. The panel also stated
that the applicant had not demonstrated that her personal situation actually
made her afraid to stay in Algeria.
[12]
With
regard to the existence of an IFA, the panel determined, based on the evidence
in the record, that it was not objectively unreasonable for the applicant to relocate
to Algiers where her new neighbours would not know about her daughter’s
problems and where her former neighbours would not be interested in persecuting
her or able to do so.
II.
Issue
[13]
The
Court finds that the determinative issue in this case is as follows:
Did
the panel err in fact and in law in its assessment of
a.
the
applicant’s credibility;
b.
the
existence of an IFA in Algiers?
III.
Relevant
statutory provisions
[14]
Sections 96
and 97 of the Act read as follows:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country
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Notions
d’asile, de réfugié et de personne à protéger
Définition de
« réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection
is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced
by the person in every part of that country and is not faced generally by
other individuals in or from that country,
(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
(iv) the risk is not caused
by the inability of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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Personne
à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en
tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou
qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque
ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque
ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de
santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne
qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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IV.
Standard
of review
[15]
The
decisions in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] and
Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, teach that findings of fact made by a tribunal are reviewable
on a reasonableness standard. The panel’s findings with respect to credibility
and the risks refugee claimants would face should they return to their country
are subject to this standard (Aguebor v
Minister of Employment and Immigration, [1993] FCJ No 732 (CA)). Regarding the issue of an IFA,
the appropriate standard of review is also reasonableness (H.V.L.M. v Canada (Minister of Citizenship and Immigration), 2010 FC 550, [2010] FCJ No 709;
Corona v
Canada (Minister of Citizenship and Immigration), 2010 FC 508, [2010] FCJ No 636). Consequently, the Court’s
intervention would only be justified if the panel’s decision did not fall “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir,
above, at paragraph 47).
V.
Analysis
[16]
In
this case, the Court must determine whether the panel erred in its assessment
of the applicant’s credibility and the existence of an IFA in Algiers.
a.
Applicant’s
credibility
[17]
The
applicant submits that the panel’s credibility finding is unreasonable. The
applicant maintains that, by recognizing that she was quite emotional when she
testified about the problems she had to deal with in Algeria and by accepting
the alleged facts as proven, the panel could not reasonably find that she was
not credible. The applicant argues that, in finding that she had exaggerated
the facts, the panel contradicted its own assessment of the facts.
[18]
Moreover,
the applicant submits that some parts of the panel’s decision are not
intelligible or transparent and that the assessment of her credibility is
cursory and inconsistent. She contends that the panel erroneously conducted a microscopic
analysis of her testimony. In addition, the applicant maintains that the panel
disregarded the distinction between an objective analysis by a reasonable
person in the same circumstances and a subjective analysis in concreto,
i.e. the state of mind of the person who is the subject of the decision. Last,
the applicant states that the panel did not address some important evidence,
notably, the medical certificate.
[19]
The
respondent states that the panel’s findings regarding the applicant’s
credibility are reasonable: the panel provided clear, unequivocal reasons about
the applicant’s lack of credibility with respect to some parts of her testimony.
The panel also noted a number of implausibilities in her testimony, notably, that
she had allowed her daughter to visit her in October 2006 despite the
difficulties she was experiencing and that her daughter returned in October
2007. In addition, the respondent confirms the reasonability of the panel’s
finding that the difficulties the applicant experienced because of her personal
situation and her status as a divorced woman do not represent harm that is sufficiently
serious or repetitive to constitute a form of persecution. In response to the
applicant’s argument about some of the documentary evidence, the respondent
submits that it is well established that analyzing the evidence and choosing
the most relevant elements fall within the panel’s expertise. The respondent
contends that the applicant cannot ask the Court to reassess the evidence that
was adduced and to substitute its opinion for the panel’s.
[20]
After
reviewing the record and hearing the parties, the Court cannot agree with the
applicant’s view. In the Court’s view, the panel’s analysis cannot be
characterized as imperfect, incomplete or inconsistent to the point where this
Court’s intervention would be warranted. On the contrary, the panel’s decision
is articulate and detailed. It was reasonable for the panel to reject the
applicant’s explanations and to find that her actions were inconsistent with
her alleged fear of persecution. Moreover, the Court notes that there is a
presumption that the tribunal has considered all the evidence in the record,
including the medical certificate in this case (Cepeda‑Gutierrez v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, (1998) 157 FTR 35). Accordingly, the Court finds that the panel’s assessment of
the applicant’s credibility was reasonable.
b)
Availability
of IFA in Algiers
[21]
The
applicant believes that in this case the panel unreasonably concluded that she
had not discharged her burden of establishing that an IFA was not a viable
option. The applicant submits that the documentary evidence and her testimony
demonstrate the significant difficulties and obstacles that single women in
Algeria encounter as well as the persecution the applicant will face should she
return.
[22]
The
respondent maintains that it was open to the panel to find that the applicant
could relocate to the city of Algiers. The respondent submits that the onus was
on the applicant to demonstrate through “actual and concrete evidence” that
there was no internal flight alternative in Algeria, that she was at serious
risk of persecution throughout her country and that it was objectively
unreasonable for her to avail herself of an internal flight alternative. The
respondent adds that the panel correctly applied the two‑pronged test
established in Thirunavukkarasu v
Canada (Minister of Employment and Immigration), [1994] 1 FC 589. The respondent argues that the panel
carefully analyzed each of the explanations the applicant put forward to rule
out the availability of an IFA and rejected each of them.
[23]
The
Court is also of the view that the panel did not err in determining that an IFA
existed in Algiers, a city of several million people where the applicant could
blend in with the population. Moreover, according to the documentary evidence,
Algiers is not one of the regions where there may be a safety risk related to
terrorism (Tribunal Record, page 143). In fact, throughout his submissions to
the Court, counsel for the applicant tended to link and extrapolate the
daughter’s situation to the impact it could have on the applicant herself.
However, based on the evidence in the record, the Court cannot accept this
argument (Tribunal Record, pages 78‑9, 236).
[24]
The
panel’s IFA findings are well substantiated and fall within a range of
possible, acceptable outcomes (Dunsmuir). It is also
settled law that the existence of an IFA, as in this case, is fatal to any
refugee claim (Pena v Canada (Minister of Citizenship and Immigration),
2009 FC 616 and Lopez v Canada (Minister of Citizenship and Immigration),
2010 FC 990).
[25]
The
Court sympathises with the applicant’s situation, but in the circumstances the
Court’s intervention is not justified. Consequently, the application for
judicial review is dismissed. The parties did not propose any question for
certification, and the record does not raise any.
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