Date: 20070530
Docket: IMM-6053-06
Citation:
2007 FC 576
Ottawa,
Ontario, May 30, 2007
Present:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
SAID
RMIKI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision by the Immigration and Refugee
Board, Refugee Protection Division (the Board), that the applicant was neither
a refugee under section 96 of the IRPA nor a person in need of protection under
section 97 on the ground that he had failed to establish that the Netherlands,
a democratic country with a judicial and law enforcement system capable of
protecting its citizens, was unable to protect him.
[2]
The
applicant, Said Rmiki, holds dual Algerian and Dutch citizenship. The facts
underlying his refugee claim arose while he was living in Algeria where he was
the target of a fatwa, a judgment of an Islamic tribunal sentencing him to
death. This fatwa was the basis of his refugee claim in the Netherlands where
he lived for ten years.
[3]
The
applicant contends that after he made a telephone call to one of his childhood
friends in Algeria in 2005, Islamic Afghans found him and threatened to carry
out the fatwa. Following this call, the applicant discovered that two Islamists
had asked about him at the mosque he attended in the Netherlands. He then asked
for police protection in the village where he lived but claims that the police
did not take him seriously because there was no evidence. The applicant was
forced to move to another town to escape his pursuers.
[4]
On
September 1, 2005, the applicant went to the police in the new town where he
was living. The police told him that they lacked the resources to provide him
with protection. Fearing for his life, the applicant left the Netherlands for
Canada where he claimed refugee status.
[5]
In the
Board’s view, the fact that the applicant only went to the police once did not
demonstrate that he had done everything objectively reasonable under the
circumstances to obtain state protection. It therefore found that the applicant
had not provided clear and convincing evidence that the Netherlands was unable
to protect him.
[6]
The only
issue in this case is whether the Board erred in fact and in law in finding
that the applicant had not discharged his burden of proof with respect to state
protection. As a preliminary matter, I note that since the applicant’s
credibility was not challenged, the “subjective” element of the fear of
persecution was met. The next step is to determine whether the fear was
objectively justifiable. In Canada v. Ward, [1993] 2 S.C.R. 689, the
Supreme Court of Canada described the burden of proof applicable in such cases
as follows:
The issue that arises, then, is how, in a
practical sense, a claimant makes proof of a state's inability to protect its
nationals as well as the reasonable nature of the claimant's refusal actually
to seek out this protection. On the facts of this case, proof on this point was
unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available, however,
clear and convincing confirmation of a state's inability to protect must be
provided. For example, a claimant might advance testimony of similarly situated
individuals let down by the state protection arrangement or the claimant's
testimony of past personal incidents in which state protection did not
materialize. Absent some evidence, the claim should fail, as nations should be
presumed capable of protecting their citizens. Security of nationals is, after
all, the essence of sovereignty. Absent a situation of complete breakdown of
state apparatus, such as that recognized in Lebanon in Zalzali, it
should be assumed that the state is capable of protecting a claimant.
[7]
Subsequently,
in Kadenko v. Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. No. 1376, the Federal Court of Appeal specified that the burden of proof
that rests on the claimant is directly proportional to the level of democracy
in the state in question: the more democratic the state’s institutions, the
more the claimant must have done to exhaust all the courses of action open to
him or her.
[8]
In this
case, the applicant is essentially arguing that the Board’s finding that he had
not done everything objectively reasonable under the circumstances to obtain
state protection is based on an erroneous finding of fact. I concur.
[9]
In fact,
it appears from the applicant’s PIF and from the transcript that the applicant
went to the police twice, not once: first, when he learned that two young
Islamists wanted to carry out the fatwa that had been issued against him;
second, after he moved to another town to escape his pursuers and realized they
were still following him. The Board clearly stated that [TRANSLATION]“[t]he fact that the
claimant only went to the police once providing approximate information and
did not go back to the police when young Islamists followed him on two
occasions, illustrates that the claimant did not persevere in seeking
protection.” The Board also determined that [TRANSLATION] “[o]wing to this inertia,
the claimant did not overturn the presumption that the Netherlands is capable
of protecting him.” The Board’s conclusion with respect to state protection was
therefore based essentially on this erroneous finding of fact.
[10]
To the
extent that this finding was at the heart of the Board’s decision regarding
state protection, it is not appropriate for this Court to make a finding of
fact, a role which lies within the exclusive expertise of the Board.
Accordingly, this Court’s intervention is warranted. For these reasons, the
application for judicial review is allowed. The decision is set aside and the
matter is remitted for reconsideration by a differently constituted panel.
JUDGMENT
The application for judicial review is allowed. The decision
is set aside and the matter is remitted for reconsideration by a differently
constituted panel.
“Danièle
Tremblay-Lamer”
Mary
Jo Egan, LLB
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