Date: 20090526
Docket: IMM-4890-08
Citation:
2009 FC 539
Ottawa,
Ontario, May 26, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
ISLAM
SID AHMED MOUALEK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Court
considers that a trier of facts is entitled to make reasonable findings founded
on implausibilities, common sense, rationality and inherent logic based on
knowledge of a subject, and may reject testimony if it does not accord with the
probabilities affecting the case as a whole (Singh v. Canada (Minister
of Citizenship and Immigration), 2007 FC 62, 159 A.C.W.S. (3d) 568; Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42
A.C.W.S. (3d) 886 (F.C.A.); Alizadeh v. Canada (Minister of Employment and
Immigration) (1993), 38 A.C.W.S. (3d) 361, [1993] F.C.J. No. 11 (QL) (F.C.A.);
Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 415 (QL) (F.C.A.)).
[2]
The Board
found that the delay in claiming refugee protection was one element among
others that undermined the credibility of the applicant’s account and the
presence of a subjective fear.
[3]
The delay in
seeking protection from the Canadian authorities, although not determinative in
itself, may be taken into consideration in the assessment of the overall credibility
of a refugee claim. The Board did not err in making this finding (Sainnéus v.
Canada (Ministre de la Citoyenneté et de l’Immigration), 2007 CF 249, [2007]
A.C.F. No. 321 (QL); Huerta v. Canada (Minister of Employment and
Immigration) (1993), 157 N.R. 225, 40 A.C.W.S. (3d) 487 (F.C.A.); Singh,
above).
[4]
The same may
be said for the long delay in leaving his country even though the applicant claimed
that he had feared being recruited into the military since 2003 (Yala v.
Canada (Minister of Citizenship and Immigration) (1999), 89 A.C.W.S. (3d)
338, [1999] F.C.J. No. 384 (QL)).
II. Judicial procedure
[5]
This is an
application for judicial review of a decision dated October 14, 2008, by the
Refugee Protection Division of the Immigration and Refugee Board (Board) that
the applicant is not a Convention refugee or a person in need of protection
under section 96 and paragraphs 97(1)(a) and (b) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA).
III. Facts
[6]
The
applicant, Islam Sid Ahmed Moualek, was born on October 27, 1985. He is single
and his entire family lives in the city of Oran, Algeria. Mr. Moualek studied at the lycée and
also studied building electricity and indicated that he worked in a fish shop from
January 2005 to September 2006.
[7]
Mr.
Moualek explained that he did not want to do his national service and feared
threats from terrorists roaming everywhere in Algeria; he alleged that two of his cousins had
serious problems when they were doing their military service.
[8]
Mr.
Moualek emphasized that he made the decision to leave his country in September
2005. With the help of his brother, he was able to falsify academic documents so
that he could present them to the Canadian authorities to obtain a visa.
[9]
His visa for
Canada was issued on September 1,
2006, and his passport was issued by the Algerian authorities on February 21,
2005, and is valid for ten years.
[10]
Mr.
Moualek left Algeria on September 21, 2006, transited
through the city of Casablanca, Morocco,
and arrived in Canada the same day.
[11]
Mr.
Moualek claimed protection from the Canadian authorities only on October 12,
2006. With respect to his fear of return, Mr. Moualek mentioned at the
beginning of the hearing that he has feared being forced to do his military
service since 2003.
IV. Impugned decision
[12]
The Board
found that the risks alleged by Mr. Moualek, namely, those stemming from
terrorism, are common to all Algerian citizens (Decision at page 2, paragraph
6).
[13]
The Board
also found that Mr. Moualek’s conduct was inconsistent with the presence of a
subjective fear.
V. Issue
[14]
Is the
Board’s decision to dismiss the application for judicial review reasonable?
VI. Analysis
[15]
The failure
to comply with a law of general application cannot be categorized as a source
of persecution.
[16]
This Court
has indicated that failing to carry out one’s military service is akin to
failing to comply with a law of general application and that this cannot be
categorized as a source of persecution or risk under section 96 or 97 of the
IRPA (Zolfagharkhani v. Canada (Minister of Employment and Immigration),
[1993] 3 F.C. 540, 41 A.C.W.S. (3d) 387; Chelleli v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1705 (QL); Usta v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1525, 134 A.C.W.S. (3d) 1070; Ozunal
v. Canada (Minister of Citizenship and Immigration), 2006 FC 560, 291
F.T.R. 305; Mohilov v. Canada (Minister of Citizenship and Immigration),
2008 FC 1292, [2008] F.C.J. No. 1645 (QL)).
[17]
Mr.
Moualek indicated that were it not for the terrorist threat, he would be quite
willing to do his military service (Applicant’s Record (AR), Record of Proceedings
(RP) at page 34).
[18]
The basis
of Mr. Moualek’s fear does not justify granting protection under the IRPA.
Enlisting with the Algerian army
[19]
Mr.
Moualek was twenty-two years old on the day of the decision. The evidence shows
that he never enlisted with the Algerian armed forces at the age of eighteen,
as required by Algerian law (Decision at page 3, paragraph 8).
[20]
Questioned
on this subject, Mr. Moualek said he was unaware of this obligation.
[21]
The Board
noted that Exhibit DZA100225.FE of June 7, 2005, which is reproduced as Exhibit
A of Hélène Jarry’s affidavit, specifies that any Algerian male must enlist in
the army at eighteen years of age (therefore, in 2003 for Mr. Moualek) and that
announcements to this effect are broadcast on the radio, the television and in
newspapers to remind men of their national duty.
[22]
These
announcements are not confined to a single year and nothing indicates that they
would have stopped in 2005. These announcements were of interest to Mr. Moualek
from the moment he was of age to enlist in the army, that is, in 2003 when he
turned eighteen. The Board’s opinion is based on the reliable documentary
evidence and this factual finding has merit.
[23]
It is
surprising that Mr. Moualek, who based his refugee claim on his fear of being
required to join the army, was unaware of every provision on the subject that
was broadcast and known in Algeria for several years.
[24]
By his
failure to act, Mr. Moualek has already been in violation of Algerian law for
five years; however, he has not received anything from the Algerian authorities
and is not being sought by them.
[25]
It is speculative
to find, as Mr. Moualek proposes, that he could have received written notice from
the army, but that his parents chose not to inform him of this interest on the
part of the military authorities.
[26]
The
evidence instead shows that this irregularity did not prevent Mr. Moualek from
leaving his country with a valid passport issued in February 2005 by the
Algerian authorities.
[27]
His
failure to enlist with the military authorities is not a source of persecution
or risk in this case.
Regularizing the applicant’s
status
[28]
Since the
early 2000s, the Algerian authorities introduced procedures to regularize the
status of young men who dodge military service. In this regard, the Board referred
to Exhibit DZA43563.FE (Decision at page 4, paragraph 10).
[29]
Mr.
Moualek said he was completely unaware of the existence of such measures to
regularize the situation of young men who had not complied with the law in this
area.
[30]
As indicated,
this ignorance is curious in that the refugee claim is founded on a desire to
avoid military service. Certainly, it can be expected that a person would have at
least some knowledge of the context regarding which he or she is claiming protection
from Canada (Decision at page 4, paragraph 10).
[31]
In its
reasons, the Board referred to the possibility of regularization for draft
dodgers who did not complete their military service. This policy has existed
for several years, as indicated in the answer to information request DZA43563.FE
of May 25, 2005, cited at paragraph 9 of the decision.
[32]
It appears
that this regularization movement is ongoing. Even though this matter was
discussed at length during the hearing, Mr. Moualek did not demonstrate that
the regularization movement ended after 2005 in Algeria.
[33]
Mr.
Moualek claims that the Board allegedly used one or more documents that were
not in evidence to come to the conclusion that regularization measures
continued in 2007 and 2008.
[34]
What is
apparent in the decision, at paragraph 9, is that regularization measures have
been in place since the beginning of the 2000s in Algeria (Exhibit DZA43563.FE of
the package on Algeria) and that the Board member
knew that these measures have been ongoing, having heard cases involving
Algerian refugee claimants for several years. Moreover, Mr. Moualek did not
deny that the regularization procedure for draft dodgers is ongoing.
[35]
Moreover, the
Board noted that the Algerian authorities cannot take all eighteen-year-old men
who must enlist in the army. The intake capacity is around 75,000 people a year
while several hundred thousand Algerian men turn eighteen every year.
[36]
Added to
this is the willingness of the Algerian government and President Bouteflika to
have a professional army rather than an army of young conscripts; these individuals
evidently are not necessarily interested in going into combat in the security
forces.
[37]
The Board
noted that Mr. Moualek is almost twenty-three and has been of age to do his
military service for five years. He never enlisted in the army, was never called
up by the army, never sought to regularize his status with the army and had no
difficulty in obtaining a passport two years after turning eighteen. In view of
these facts, the Board found that Mr. Moualek would not be subjected to
enforcement of the national service law.
Fear of terrorists
[38]
Mr.
Moualek said that he feared terrorists who, according to him, attack young men
called up to serve in the army. More precisely, he feared being killed in a
confrontation (Decision at page 5, paragraph 12).
[39]
For its
part, the Board acknowledged in Mr. Moualek’s testimony that terrorists try to
commit acts in places where there are large numbers of Algerian citizens. Moreover,
Mr. Moualek cited markets, the post office and roads as likely places for terrorist
activity.
[40]
The Board
found that the situation described by Mr. Moualek could arise anywhere in the
country and that this situation is generalized in the entire country of Algeria. Thus, the fear raised by Mr.
Moualek does not give rise to the granting of protection under sections 96 and
97 of the IRPA.
Subjective fear of the
applicant
[41]
Mr.
Moualek first indicated, at the beginning of the hearing, that he had made the
decision to leave Algeria in September 2005. Confronted
with the fact that he had obtained his Algerian passport seven months earlier,
in February 2005, Mr. Moualek indicated that he had been thinking of leaving
since the end of 2004 (RP at page 35).
[42]
The Board noted
that even though Mr. Moualek had wanted to leave his country for several years,
he did not think it was appropriate to claim refugee protection upon his
arrival in Canada on September 21, 2006. Instead,
it was twenty-one days later, on October 12, 2006, that he sought protection
from the Canadian authorities.
[43]
When asked
to explain this delay, Mr. Moualek indicated that he had needed time to rest, get
his bearings and find his place in Canada
(RP at page 36).
[44]
At paragraph
18 of his memorandum, Mr. Moualek indicates that this finding is not consistent
with his testimony and cites an excerpt of the hearing found at page 37 of his
record.
[45]
The Court
is of the opinion that this question was given a specific answer at page 36 of
the record and the Board’s factual finding is reasonable and based on the
evidence:
SH: [translation] Mr. Moualek, please, I have
not yet asked any questions! So, about three weeks after your arrival in Canada. Why the three-week delay?
SAM: [translation] Just time to rest, find my
place and bounce back. It took me about three weeks to claim protection.
SH: [translation] What do you mean by finding
your bearings?
SAM: [translation] Because for the first while, I
was not stable, I was not familiar with anything, I was not familiar with my surroundings,
everything was new. I started to become a little more familiar with my
surroundings; it took about three weeks.
[46]
The Board
was entitled to accept this part of Mr. Moualek’s testimony as part of its
analysis.
[47]
The Board
found that the delay in claiming protection was one element among others that
undermined the credibility of his account and the existence of a subjective
fear.
[48]
The delay
in seeking protection from the Canadian authorities, although not determinative
in itself, may be taken into consideration in the assessment of the overall credibility
of a refugee claim. The Board did not err whatsoever in making this finding (Sainnéus,
above; Huerta, above; Singh, above).
[49]
The same may
be said for the long delay in leaving Algeria even though the applicant claimed
that he had feared being recruited into the military since 2003 (Yala, above).
The applicant’s arguments based
on breaches of natural justice
[50]
At paragraph
5 of his memorandum, Mr. Moualek alleges that the Board committed two breaches
of natural justice.
[51]
First, Mr.
Moualek indicates that the Board intervened [translation] “57 times” during the
examination by his counsel, and this, according to him, constitutes a breach of
natural justice.
[52]
After
reading the transcript, the Court finds that the Board asked certain questions in
an attempt to clarify the nature of Mr. Moualek’s refugee claim (Decision at page
3, paragraph 7).
[53]
It should
be noted that Mr. Moualek’s counsel specified, on two occasions, that he did
not have any other questions for Mr. Moualek. Certainly, nothing indicates that
Mr. Moualek was hampered in presenting his evidence in any way (RP at page 51).
[54]
In any
event, the Court emphasizes that the Board was entitled to question Mr. Moualek
to clarify evidence—this does not constitute a breach of natural justice.
[55]
The comments
of Justice Yves de Montigny in Chamo v. Canada (Minister of Citizenship and Immigration), 2005 FC 1219, 142 A.C.W.S.
(3d) 309, apply in this proceeding:
[12] It is not sufficient to look at the words of which the
Applicant complains; these words must be set in context, in the overall view of
the proceedings (Mihajlovics v. Canada (M.C.I.), [2004] F.C.J. No. 248, at para. 15). It is
true that the Presiding member interjected often and asked a number of
questions. But energetic questioning by a Board member and frequent interruptions
will not necessarily give rise to a reasonable apprehension of bias, especially
if the intervention is to clarify a claimant's or witness' testimony (Ithibu
v. Canada (M.C.I.), [2001] F.C.J. No.
499; Mahendran v. Canada (M.E.I.), supra; Quiora v. Canada (M.C.I.),
[2005] F.C.J. No. 338).
[56]
Mr.
Moualek’s counsel did not object to the Board’s interventions during the
hearing. The failure to raise questions of natural justice in a timely manner amounts
to a waiver of this argument (Hernandez v. Canada (Minister of Citizenship
and Immigration) (1999), 91 A.C.W.S. (3d) 811, [1999] F.C.J. No. 607 (QL); Canada
(Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; 24 A.C.W.S. (3d)
311; Huyck v. Musqueam Indian Band (2000), 189 F.T.R. 1, 97 A.C.W.S.
(3d) 381; Del Moral v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R. (3d) 98;
81 A.C.W.S. (3d) 689; Nartey v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 74, 46
A.C.W.S. (3d) 727; Abdalrithah v. Canada (Minister of Employment and Immigration) (1988), 40 F.T.R. 306, [1988]
F.C.J. No. 117 (QL)).
[57]
Second, Mr.
Moualek claims that the Board suggested that his counsel would be prepared to
fabricate evidence.
[58]
The
relevant exchanges between the Board member, Mr. Moualek and his counsel can be
found at pages 27 to 29 of the applicant’s record. There is a discussion of the
false record Mr. Moualek fabricated to obtain a Canadian visa. The Board member
indicated, at page 29, that he could not establish that Mr. Moualek’s academic
documents had been doctored because he did not have the original that would
allow him to note the changes made:
BM: [translation] I understand, but I do not see
that the document has been doctored; when I look at the transcript and as I don’t have the original,
I cannot see if there is white-out on his name because what I have is a
photocopy. It is only afterwards that we know that he obtained a Canadian visa
to study under false pretence.
SH: [translation] Obviously and if that were not the case, it would
have been easy for him to take the information contained in the visa file and
prepare his personal information form.
BM: [translation] With your help, of course. You
would like to add something Mr. Handfield. Go ahead.
[59]
Thus, it
is on the basis of this excerpt that Mr. Moualek’s counsel alleges that the
Board member suggested that he would fabricate false evidence. He adds that
such comments were completely unacceptable.
[60]
The
respondent denies Mr. Moualek’s inference.
[61]
First, if Mr.
Moualek’s counsel had interpreted the Board member’s remark as an attack directed
at his professional integrity, it is reasonable to believe that he would have
reacted immediately. However, the transcript indicates that the hearing
continued normally.
[62]
Second, Mr.
Moualek’s counsel’s intervention ended with the words [translation]
“[. . .] prepare his
personal information form”.
It is reasonable to believe that the Board member’s remark, [translation] “with
your help”, indicated that counsel helped or would help his client prepare his Personal Information Form (PIF), according to the information (the facts)
the client gave him.
[63]
Of course,
it is completely normal for a lawyer to play a role in preparing a refugee
claimant’s PIF. Thus, the Board member’s comment is not an attack on Mr.
Moualek’s counsel.
VII. Conclusion
[64]
For all of
the above reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial
review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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