Docket:
IMM-7171-11
Citation:
2012 FC 771
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 18, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
|
|
ALI BEN ZAIED
HEDIA CHERIF EP BEN ZAIED
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review filed in accordance with subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act), of a
decision dated September 16, 2011, in which the Refugee Protection
Division of the Immigration and Refugee Board (panel) found that the applicant
was not a refugee or a person in need of protection under sections 96 and 97 of
the Act.
I.
Background
A. Factual
background
[2]
Ali
Ben Zaied (the principle applicant), sixty-seven years old (67), and his spouse,
Hedia Cherif Ep Ben Zaied (the female applicant), sixty-five years old (65), are
Tunisian citizens. The applicants are claiming refugee protection in Canada under
sections 96 and 97(1) of the Act.
[3]
The
applicants allege that their problems began in June 2008. The principal male applicant
submits that he was approached and intercepted by two strangers as he exited the
mosque in his neighbourhood. The principal male applicant contends that the
male individuals ordered him to refrain from going to the mosque owing to the
fact that he was Shi’ite and could not participate in the rites of the faith. However,
the principal male applicant returned to the mosque. He learned that other Shi’ites
had been victims of the same verbal threats.
[4]
Subsequently,
the male principal applicant alleges that he received threatening calls and was
warned to stop participating in the mosque’s rites. One week after the calls,
the male principal applicant submits that three men intercepted him and that he
was kicked and punched in the face. The individuals warned him to stops his
activities.
[5]
The
male principal applicant explained that he made an unsuccessful attempt to file
a complaint with the police. Also, the male principal applicant maintains that the
female applicant started to become anxious in light of those threats and, as a
result, her health began to deteriorate. After discussions with their four
children, all residents of Canada, the applicants decided to leave Tunisia. The
applicants came to Canada on September 20, 2008, and obtained a visa for a period
of six months. They were subsequently granted a six-month extension. Following
a one-year stay in Canada, a work permit application for the male principal
applicant was refused.
[6]
The
applicants allege that they declared themselves sur place refugees on
March 10, 2010, owing to the precarious situation in Tunisia.
[7]
The
hearing before the panel was held on July 18, 2011.
B. Impugned decision
[8]
The
panel rejected the applicants’ refugee claim as it found that the applicants
were immigrants rather than refugees.
[9]
Essentially,
the panel determined that the applicants came to Canada for economic and
medical reasons and to remain with their children. The panel found the principal
male applicant’s testimony about his fear of the Sunni individuals in Tunisia
to be confusing and imprecise. Moreover, the panel drew a negative inference
from the fact that the applicants did not claim refugee status upon arrival and
the fact that they were illegal when they declared themselves sur place
refugees in 2010. Furthermore, the panel noted that the applicants had already
been to Canada twice to visit their children: they stayed in Canada for six
months in September 2004 and they stayed in Canada for another month in April
2007. Accordingly, the panel concluded that the male applicant did not demonstrate
a well-founded fear of persecution at the hands of Sunni individuals in Tunisia.
II.
Issue
[10]
The
Court is of the view that the only issue is the following: did the panel err by
finding that the applicants failed
to demonstrate the existence of a subjective fear?
III.
Applicable
statutory provisions
[11]
The
applicable statutory provisions of the Immigration and Refugee Protection Act
read as follows:
|
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.
|
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.
|
|
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.
|
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.
|
IV.
Applicable
standard of review
[12]
According
to the case law, the applicable standard of review for determining whether an
applicant established a subjective fear of persecution is reasonableness (Garzon
v Canada (Minister of Citizenship and Immigration), 2011 FC 299 at paragraph
24, [2011] FCJ No 381; Qin v Canada (Minister of Citizenship and Immigration),
2012 FC 9 at paragraph 34, [2012] FCJ No 14).
V.
Analysis
[13]
In
the case at bar, the Court finds that the panel’s decision is reasonable for the
following reasons.
[14]
With
respect to the issue of subjective fear, the Court notes that pursuant to Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 [Dunsmuir], the applicants
have the burden of demonstrating that the panel’s decision
does not fall within the range of acceptable outcomes that are defensible
in respect of the facts and the law. Also, the Court
notes that refugee claimants must establish that they have both a subjective fear
of persecution in their country of origin and an objective basis for that fear.
[15]
In light of the evidence in the record, the Court notes that
it was reasonable for the panel to draw negative inferences from, inter alia,
the fact that (i) the applicants did not provide clear explanations to the panel’s
questions about their persecutors (Tribunal Record, pages 158 and 174); (ii)
that the applicants made a claim for refugee protection following a two-year (2)
stay in Canada―and following two (2) visa extensions―(J.E.P.G.
v Canada (Minister of Citizenship and Immigration), 2011 FC 744, [2011] FCJ
No 938); and (iii) the fact that their responses indicate that they
wished to remain in Canada for economic and family reasons (Tribunal Record, page
188). More specifically on that last point, the Court agrees with the
respondent that the questions posed by the panel to the applicants fit in [translation] “perfectly
with the panel’s obligations to verify the existence of subjective fear” (Farfan
v Canada (Minister of Citizenship and Immigration), 2011 FC 123, [2011] FCJ
No 153 [Farfan]; Espinosa v Canada (Minister of
Citizenship and Immigration), 2003 FC 1324, [2003] FCJ No 1680 [Espinosa]).
[16]
In fact, when read as a whole, the Court is of the view
that the applicants’ testimony concerning what could happen to them if they
were to return to Tunisia remains speculative (Tribunal Record, pages 182-183),
and the evidence in the record does not demonstrate how the applicants’
personal situation differs from that of the other Shi’ites in Tunisia.
[17]
Furthermore, the Court cannot accept the applicants’ argument
that there is room for a certain ambiguity in their responses at pages 188 and
189 of the Tribunal Record. A careful reading does not satisfy this Court and, furthermore,
if that was the case, counsel for the applicants should have raised it at the
hearing before the panel, which was not done. As the respondent points out and,
having regard to the evidence in the record, the panel could take the applicants’
behaviour into consideration in
assessing their subjective fear of being persecuted (see Espinosa, above, at paragraphs 16-17; Heer
v Canada (Minister of Employment and Immigration), [1988] FCJ No 330).
The Court also notes that it is settled law that the lack of subjective
fear is fatal to a refugee claim (see
Farfan, above, at paragraph 16).
[18]
That said, with respect to the issue of sur place
refugees, the Court must also dismiss the applicants’ argument that the panel did
not consider the issue of sur place refugees. The Court noted rather that the panel dealt with the issue
of the state of insecurity in Tunisia at paragraphs 13 and 14 of its decision. It
was also reasonable for the panel to conclude that there was no connection between
that situation and the applicants’ claim for refugee protection and
that they were affected to the same degree as all Tunisians. In fact, the applicants admitted that they are
not specifically affected by the events arising from the revolution and that
they would face the same fate as the rest of the Tunisian population (Tribunal
Record, page 182).
[19]
In light of the foregoing, although the Court sympathizes with
the applicants’ situation, the Court is of the view that the panel’s decision to
reject the applicants’ claim for refugee protection falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law as stated by the Supreme Court of Canada in Dunsmuir,
above.
[20]
No question was raised by the parties for certification and
this case does not involve any.
Email this Content