Date:
20130108
Docket:
IMM-4179-12
Citation:
2013 FC 12
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, January 8, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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HICHAM AMRANE
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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 (IRPA) for judicial review of a decision by
the Refugee Protection Division (RPD) of the Immigration and Refugee Board
dated April 4, 2012. The RPD determined that the applicant is neither a Convention
refugee under section 96 of the IRPA nor a person in need of protection
under section 97 of the IRPA.
I. Facts
[2]
The
applicant is a 25‑year‑old Algerian citizen. He worked for 2SP, a
petroleum security company.
[3]
In
2007, the applicant met an individual named Khaled through an acquaintance, Merouane.
Khaled told him that Al-Qaeda had recruited him to drive a van filled with
explosives onto the premises of the Sonatrach oil company, for which 2SP was
providing petroleum surveillance.
[4]
The
applicant asked for a few days to think about it, and this request was granted.
However, he received death threats from members of Al-Qaeda. The applicant did
not report this to the police, claiming that they are sometimes corrupt and
that the Algerian people have no confidence in the police. The applicant also
stated that some police officers work for the terrorists and that therefore he
preferred not to go to the police.
[5]
On
February 12, 2007, the applicant fled Algeria for France where he arrived
by boat. In France, some acquaintances advised him against claiming asylum. Accordingly,
the applicant took no steps to do so. He left France on April 16, 2010,
arrived in Canada on May 1, 2010, and applied for refugee protection on
June 11, 2010.
II. Decision
under review
[6]
The
RPD found that the applicant was not a member of a group targeted by
persecution because [translation] “people
considered non‑believers, traitors for refusing to cooperate with Al‑Qaeda”
did not come under this category of persons.
[7]
The
RPD analyzed the documentary evidence on protection provided in Algeria against
the actions of terrorist groups, specifically Al‑Qaeda. The documentary
evidence refers to serious steps the Algerian government has taken to combat
the activities of terrorist organizations. Algeria is a democratic country, and
there is a presumption that its authorities can provide concrete protection to
its citizens. The RPD also found that, although corruption exists in the
Algerian police force, it is limited to individuals.
[8]
Thus,
the RPD concluded that the applicant’s decision not to seek state protection
was unjustified in the circumstances and that, as a result, he could not obtain
refugee protection. In the RPD’s opinion, the documentary evidence did not
support the applicant’s claim that the police could not protect him. It found
that the subjective fear alleged by the applicant could not rebut the
presumption of state protection.
[9]
Moreover,
the RPD rejected the applicant’s explanation about his decision not to seek
asylum in France. The RPD found that the applicant’s behaviour was inconsistent
with his alleged subjective fear of persecution. The fact that his colleagues had
advised him against claiming asylum in France was not a satisfactory
explanation.
[10]
Last,
in its decision, the RPD explained why it did not grant the motion for recusal brought
by counsel for the applicant. During the hearing, the applicant’s spouse, who
was participating as an observer, got up to give a document to counsel for the
applicant. The panel found that this behaviour was inappropriate given that an
observer cannot behave in this manner during the hearing especially since the
panel had required the applicant to testify without any documents. At that
point, the panel stated that it would take the observer’s behaviour into
account when assessing the applicant’s credibility. The RPD member found that a
reasonable apprehension of bias was not justified in the circumstances and
decided not to recuse himself.
III. Applicant’s
position
[11]
First,
the applicant submits that the RPD erred by finding that [translation] “people considered non‑believers,
traitors for refusing to cooperate with Al‑Qaeda” are not members of a
particular social group that can be persecuted. In his opinion, the RPD should
have found that the applicant was a member of a group associated by a former
voluntary status, unalterable due to its historical permanence.
[12]
Second,
the applicant submits that the RPD erred by concluding that the protection of
the Algerian authorities was available to the applicant. He submits that the
applicant adduced evidence establishing that the Algerian government is not capable
of controlling terrorist acts and that the documentary evidence he provided was
more recent than the evidence the panel relied on. Accordingly, the RPD did not
consider probative evidence showing that protection in Algeria against
terrorist acts is now ineffective.
[13]
Third,
the applicant submits that the RPD erroneously found that the fact that the applicant
had not requested asylum in France showed a lack of subjective fear. The
applicant stated that he had intended to take that step in France but that he
was told he would sent back to Algeria.
[14]
Fourth,
in the applicant’s view, the panel erred by refusing to recuse himself when the
applicant made that request, alleging that the panel’s behaviour gave rise to a
reasonable apprehension of bias. According to the applicant, the panel
impatiently threw his pen at his computer and laughed and smiled while the
applicant was testifying. In addition, the RPD erred by making an adverse
finding about the applicant’s credibility on the basis that his spouse stood up
during the hearing to give a document to his counsel.
IV. Respondent’s
position
[15]
In
the respondent’s view, the RPD’s decision is reasonable. First, the RPD properly
found that the applicant was a not a member of one of the categories of persons
who may be victims of persecution given that the jurisprudence has established
that being targeted by a criminal group is not in itself a valid basis for a
refugee claim.
[16]
Second,
the applicant did not avail himself of the protection of the Algerian state even
though it would have been reasonable to do so in the circumstances since the
presumption of state protection applies to Algeria. Furthermore, the
applicant’s subjective belief that the state could not protect him adequately
is insufficient to justify a refusal to seek such protection.
[17]
Third,
the RPD’s finding that the applicant should have sought protection from France
and that his inaction showed a lack of subjective fear is reasonable.
[18]
Last,
with respect to the panel’s decision not to recuse itself, the respondent’s
position is that the decision was justified in the circumstances because
nothing in this case gave rise to a reasonable apprehension of bias.
V. Issues
1. Did
the RPD err by refusing to recuse itself?
2. Did the RPD
err by finding that [translation]
“people considered non‑believers, traitors for refusing to cooperate with
Al‑Qaeda” are not a particular social group that can be persecuted?
3. Did
the RPD err by determining that Algerian state protection was available to the
applicant?
4. Was
it unreasonable for the RPD to find that the fact that the applicant had not sought
asylum in France showed a lack of subjective fear?
VI. Standard
of review
[19]
The
appropriate standard for the panel’s decision not to recuse itself is
correctness since this is a question of procedural fairness (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339). The appropriate
standard for the three last issues is reasonableness since they are mixed
questions of fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paras
164‑166, [2008] 1 S.C.R. 190).
VII. Analysis
A. Did
the panel err by refusing to recuse itself?
[20]
The
test to be applied in assessing a reasonable apprehension of bias in a decision‑maker
is well known. It was defined in Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at p 394, 9 NR 115. Justice Grandpré
stated that it is “what would an informed person, viewing
the matter realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than not that [the
decision‑maker], whether consciously or unconsciously, would not decide
fairly.”
[21]
First,
the Court cannot accept the applicant’s allegations that the panel threw a pen
in a gesture of impatience, said some things that would be inappropriate in a
hearing room and laughed and smiled while the applicant was testifying.
[22]
In
fact, the transcript of the hearing that took place before the RPD does not show
that the panel used any inappropriate language during the hearing. Furthermore,
counsel for the applicant did not submit an audio transcript of the hearing
before the RPD and hence could not establish that the panel laughed while the
applicant was testifying. Thus, on the basis of these allegations, the Court
cannot find that the panel’s behaviour gave rise to a reasonable apprehension
of bias.
[23]
The
incident that took place at the hearing did not affect the decision‑maker’s
impartiality. Certainly, the applicant’s spouse gave a document to counsel for the
applicant, but the applicant did not have access to it at any time. The panel
indicated that this incident would negatively affect the applicant’s
credibility. Consequently, counsel for the applicant thought it appropriate, in
these circumstances, to make a motion for recusal.
[24]
The
Court is of the opinion that the observer’s behaviour was not a reason that
could affect the applicant’s credibility. It appears that the panel’s reaction
to the situation was a bit extreme. This incident was certainly regrettable and
became too much of an issue in the circumstances. However, a person observing
the situation objectively, considering all the evidence and the issues at play,
would not see the panel as biased because of this annoying incident. There is
nothing to suggest that the panel did not decide the case impartially.
[25]
On
this point, it is important to note that the panel’s decision to reject the
applicant’s refugee claim is entirely supported by facts that are unrelated to
the incident that occurred during the hearing. In fact, the evidence was that
the applicant’s behaviour was not consistent with that of a person who really
feared for his safety. The reasoned decision, as we will see in the following
paragraphs, was based on the facts put into evidence, and the findings are
therefore reasonable.
B. Did the RPD err by finding
that the “people considered non‑believers, traitors for refusing to
cooperate with Al‑Qaeda” are not a particular social group that can be
persecuted?
[26]
It
has been recognized there is not necessarily a link between a person who fears
being the subject of reprisals by a criminal group and one of the Convention
grounds (Suarez v Canada (Minister of Citizenship and Immigration), 64 ACWS (3d) 1196, 1996 CarswellNat
1221; Maldonado Lainez v Canada (Minister
of Citizenship and Immigration), 2011 FC 707 at para 29, 2011 CarswellNat 3179). In this
case, Al-Qaeda did not threaten the applicant because of his political
convictions. He was as much at risk as any other Algerian citizen of being the
victim of a recruitment attempt by this criminal group that poses a threat to
the Algerian people generally.
[27]
The
RPD’s decision that “people considered non‑believers, traitors for
refusing to cooperate with Al‑Qaeda” are not a particular social group
that can be persecuted under the definition of “particular social group”
established in Canada (Attorney General) v Ward (1993), [1993] 2 S.C.R. 689,
103 DLR (4th) 1 is therefore reasonable.
C. Did the RPD err by determining that Algerian
state protection was available to the applicant?
[28]
The
applicant submits that the RPD disregarded evidence that contradicted its
finding that Algeria is capable of providing effective protection to its
citizens against terrorist acts. The evidence submitted by the applicant consisted
of newspaper articles referring to possible repercussions of movements in Libya
on Al-Qaeda’s activities in Algeria. Although the Algerian government will
certainly have to face new challenges in terms of preventing terrorist acts,
the evidence does not demonstrate that the government is no longer able to
provide adequate protection to its citizens because the situation has become
uncontrollable.
[29]
Thus,
the RPD did not fail to consider important evidence in this case (Cepeda‑Gutierrez
v Canada (Minister of Citizenship and Immigration), 157 FTR 35 at para 17,
1998 CarswellNat 1981). This evidence submitted by the applicant was before the
decision‑maker, but it did not find that the information established that
protection in Algeria had become ineffective.
[30]
Accordingly,
the RPD’s finding is reasonable because where a state is capable of providing
adequate protection to its citizens, the onus is on the applicant to submit
clear and convincing evidence establishing that such protection was not offered
to him or her (Ward, above). The applicant did not provide a convincing
explanation to the RPD, simply stating that the Algerian authorities are
sometimes corrupt and that he has no confidence in the police.
D. Was it unreasonable for the RPD to find that
the fact that the applicant had not sought asylum in France showed a lack of
subjective fear?
[31]
The
Federal Court of Appeal has recognized that the fact that a person does not
seek asylum at the first opportunity is a factor that indicates that the person
does not have a genuine subjective fear (Huerta v Canada (Minister of Employment and Immigration), 157 NR 225 at para 4, 1993 CarswellNat 297 (FCA)).
[32]
In
the circumstances, the mere fact that his friends advised him against claiming
asylum does not justify the fact that the applicant did not request the
protection of the French state. The applicant stayed in France for a period of
roughly three years without attempting to obtain asylum in that country, and
yet it would have been reasonable to do so if he feared for his safety should
he return to Algeria.
[33]
The
RPD’s finding that the lack of concrete steps in France shows that the
applicant did not have a subjective fear of returning to Algeria is reasonable.
[34]
The
parties were invited to submit a question for certification, but no question was
proposed.
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