Date:
20130508
Docket:
IMM-6261-12
Citation:
2013 FC 481
Ottawa, Ontario,
May 8, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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NOUREDDINE KHELOUFI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, an Algerian citizen, seeks judicial review of a negative decision
made on December 7, 2011, by a Citizenship and Immigration Canada [CIC] officer
[PRRA officer], refusing his application for a pre-removal risk assessment
[PRRA] pursuant to section 112 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [Act].
Background
[2]
The applicant
entered Canada with a forged French passport on June 8, 2001, after having made
two unsuccessful claims for refugee protection in Italy and in the United Kingdom. Upon arrival in Canada, the applicant sought refugee protection on the
basis that, as a member of the Association Cinéma Œil, he was threatened
on several occasions and had a well-founded fear of persecution at the hands of
members of the Groupe Islamique Armée. That claim was rejected by a
decision of the Refugee Protection Division [RPD] on June 8, 2004, mainly for
credibility issues. In December of 2004, the applicant made an application for
permanent residence based on humanitarian and companionate grounds, which was
also dismissed on July 23, 2007.
[3]
The
applicant’s removal was submitted for a PRRA on March 3, 2011, on the grounds
that since the rejection of his refugee claim, the applicant converted from
Islam to Christianity and was baptized in April 2011, and that he “fears
persecution on the basis of his religion as well as on the basis of his status
as a returning asylum seeker who would be perceived as having links with
extremists/terrorist organizations/individuals.” (Applicant’s Submissions in
Support of his PRRA Application, Applicant’s Record, p. 35). In fact, in his
affidavit submitted to the PRRA officer, the applicant stated that shortly
after his arrival in Canada, he was contacted and investigated on two occasions
by the RCMP, in October 2001 and later in 2002. The purpose of these
investigations was to ascertain whether the applicant was involved with an
extremist suspect of Libyan nationality. In his affidavit, the applicant also
referred to an interview he had with the Canadian Security Intelligence
Services [CSIS] in the initial
phases of his refugee determination process. Neither the applicant’s record not
the PRRA officer’s written reasons contain further information regarding the
investigation of the applicant by Canadian authorities.
[4]
The
Respondent has filed a February 6, 2003 report by CSIS, containing notes of this
interview, which was conducted as part of the Front End Screening of Refugees
Program of the CIC (Affidavit of Francine Lauzé, Exhibit D).
[5]
As
a preliminary determination, I find that, for two main reasons, these notes
cannot and should not be considered by the Court for the purposes of this
judicial review. Firstly, it is trite law that
judicial review of any administrative decision should proceed on the basis of
the evidentiary record that was before the decision-maker and the CSIS report
was not part of the tribunal’s record when the
matter was first decided by the PRRA officer (McFadyen v
Canada (Attorney General), 2005 FCA 360 at para 15; Kim v Canada (Minister
of Citizenship and Immigration), 2005 FC 1357 at para 5; Nyoka v Canada
(Minister of Citizenship and Immigration), 2008 FC 568 at para 17). Secondly, both
grounds of review raised by the applicant in this case are related to his
conversion to Christianity and not to his assertion
that he would be presumed to be a terrorist by the Algerian security forces or
other authorities if he were to return to his country. In fact, the applicant’s
counsel abandoned the latter argument at the hearing before the Court.
[6]
Furthermore,
it is well established that the risk assessment to be carried out at the PRRA
stage is not to be a reconsideration of the RPD’s decision, but is instead
limited to an evaluation of new evidence that either arose after the
applicant’s refugee hearing or was not previously reasonably available to the
applicant (Hausleitner
v Canada (Minister of Citizenship and Immigration), 2005 FC 641 at para 26).
Consequently, in this case, the PRRA officer correctly
applied the standard
for the reception of new evidence and essentially dealt with the applicant’s
new allegations, namely the evidence of his recent conversion to Christianity
and the general documentation on the treatment of non-Muslims and failed asylum
seekers in Algeria.
PRRA Officer’s Decision
[7]
The PRRA officer examined
the documentary evidence in relative detail and determined that the applicant
would not be subject to a risk of persecution, danger of torture, risk to life
or risk of cruel and unusual treatment or punishment if he were to return to Algeria,
stating that:
I have noted that the applicant had provided
documents concerning his baptism and initiation to the Christian religion.
Based on the evidence provided by the applicant I am satisfied that he was
baptised. The applicant has not demonstrated involvement in Church activities
beyond the activities conducted for his conversion. All of the articles
regarding the practice of non-Muslim religions make reference to the illegal
practice in a place of worship that has not been registered, on the
proselytizing of Muslims to non-Islamic religions.
Based on the documentation provided by the applicant
he would not be personally at risk for practicing his religion in Algeria and would be able to freely practice his Christian faith in the registered
churches. In other words, the applicant would not be at risk of persecution
based on his religion, nor would he face a risk to his life or cruel and
unusual treatment or
punishment.
The
applicant has also submitted that he would be at risk because he sought asylum
from Algeria and for being a presumed terrorist. The evidence that the
applicant has presented for these allegations are general and reflect the
reality of individuals that are known refugee claimants and people that were
suspected of involvement with terrorist activities. These documents do not
provide proof that the applicant is sought by Algerian authorities or that he
would be targeted for the aforementioned reasons. The applicant has not met the
burden of proof to determine that he would personally face the said risks. As a
result, the applicant would not be at a risk beyond a mere possibility.
[8]
Despite
the above-stated finding of lack of sufficient evidentiary basis, the PRRA
officer focused on the assessment of the alleged risks from an objective point
of view and found that:
Based on the documentation consulted the applicant
would not be targeted and at risk of persecution based on his religion. There
are certain laws that are in place to protect the state religion Islam; however
the law also includes acts protecting non-Muslim religions. The government does
not condone acts of violence against the non-Muslim population. Based on the
applicant’s profile of young Christian Algerian man, there is no more than a
mere possibility that the applicant would face persecution on the basis of
religion if he returned to Algeria.
The applicant has also expressed a fear of cruel and
unusual treatment or punishment upon return to Algeria because he had applied
for protection in Canada. The refugee claim that was submitted by the applicant
is protected information and at no point during the removal process are the
foreign authorities informed that an individual has made a claim in Canada. The only document that is presented to foreign embassy or consulate is the removal
order, as it supports the request for a travel document, and it contains no
information regarding an application for protection. Therefore, the Algerian
authorities are not notified of the applicant’s status and would not have been
made aware of the applicant’s claim.
[9]
The
applicant takes issue with the above findings arguing i) that the PRRA officer
applied a restrictive conception of the freedom of religion and conscience and
failed to consider the risk of persecution, including the imposition of penal
sanctions for failure to observe Islamic laws, and ii) that the PRRA
officer failed to consider the evidence of the applicant’s alleged risk of
punishment for mere possession of the Bible.
Issue and Applicable Standard of Review
[10]
The
sole issue to be decided is therefore is whether the PRRA officer erred by
failing to consider relevant
factual considerations in her
assessment of the applicant’s alleged risk on the ground of his recent
conversion to Christianity. The applicant’s position is that the PRRA officer
unreasonably rejected the evidence provided in support of part of the risks he
allegedly faced by limiting the scope of her analysis to the question of
whether or not the applicant could practice his faith in a registered church.
[11]
Since
Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], it is well
established that the Court’s role is not to substitute its own appreciation for
that of administrative decision makers and that it must show deference to their
weighing of the evidence and assessment of credibility (Martinez v Canada (Minister
of Citizenship and Immigration), 2009 FC 798 at para 7; Andrade v Canada (Minister of
Citizenship and Immigration),
2010 FC 1074 at para 23).
[12]
In
reviewing the PRRA officer’s decision against the standard of reasonableness,
the Court should not intervene unless a finding of fact is erroneous and made
in a perverse or capricious manner; a decision was made without regard for the
evidence (subsection 18.1(4) of the Federal Courts Act, RSC, 1985, c
F-7); or the tribunal came to a conclusion that is not transparent, justifiable
and intelligible and within the range of acceptable outcomes based on the
evidence before it (see Dunsmuir, above, 2008 SCC 9 at para 47, and Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59 [Khosa]).
As the Supreme Court held in Khosa, it is not up to a reviewing court to
substitute its own view of a preferable outcome, nor is it the function of the
reviewing court to reweigh the evidence (Khosa, above, at para 59).
Review of the
Impugned Decision
[13]
A close
reading of the PRRA officer’s reasoning
shows that the applicant’s arguments amount to a simple disagreement with the
manner in which all the evidence, including the objective documentary evidence,
was assessed and analyzed.
[14]
The
PRRA officer’s review and balancing of the objective evidence led her to
conclude that religious minorities in Algeria, including those of Christian
faith, are able to practice their religion freely and without systematic
harassment. She essentially found that non-Muslims are not restricted from
practicing their religion and are given equal rights, and added that acts of
discrimination by extremists have been publicly criticized by the Muslim
religious and political leaders of the country. The PRRA officer primarily
relied on the fact that according to the 2010 International Religious Freedom
Report released on November 19, 2010 by the US Department of State:
The constitution [of the People’s Democratic
Republic of Algeria] provides for freedom of belief and opinion and permits
citizens to establish institutions whose aims include the protection of
fundamental liberties of the citizens. The constitution declares Islam the state
religion and prohibits institutions from engaging in behaviour incompatible
with Islamic morality. Other laws and regulations provide non-Muslims the
freedom to practice their religion as long as it is in keeping with public
order, morality, and respect for the rights and basic freedoms of others. The
law prohibits efforts to proselytize Muslims, but it was not always enforced.
Government officials asserted that the ordinance is designed to apply to
non-Muslims the same constraints that the penal code imposes on Muslims.
[15]
The
applicant asserts that the PRRA officer’s focus on his ability to practice his
faith freely at a registered church led her to discount other forms of serious
risk and discrimination faced by the applicant. The applicant is of the view
that the fact that the Algerian authorities require general compliance with
Islamic rules and conventions and, according to the objective evidence, have
been found to charge non-Muslim citizens with “denigrating the dogma or
precepts of Islam” for publicly breaking fast during Ramadan (The State
of the World’s Human Rights, Amnesty International, October 1, 2012, pp.
22-24 of the Tribunal’s Record), equates to religious persecution and should
have been found as a risk faced by the applicant. In other words, the applicant
is of the view that where the evidence demonstrates state coercion of religious
minorities, on pain of arrest and prosecution, to observe the religious
practices of the majority, whether the applicant is free to attend activities
in a registered church is only half the question. The applicant relies on the
Supreme Court’s jurisprudence in R v Big M Drug Mart Ltd, [1985] 1 S.C.R. 295, to argue that
persecution can arise not only from being unable to practice one’s religion,
but also from being forced to observe the religious practices of a religion
that one does not believe in.
[16]
The
respondent’s written submissions present the issue as being one of balancing
inconsistent evidence and determining the probative value of different
evidentiary elements, rather that a restrictive interpretation of the scope of
the freedom of religion and conscience.
I agree with the respondent.
[17]
In the
context of a refugee claim or PRRA application, although this Court has to rely
on international concepts, the question is not whether all the laws of a given
country would pass the test of the Canadian courts and would be considered as
compliant with Canada’s constitution and its Charter of Rights and Freedoms.
Rather the question is whether this applicant faces more than a mere
possibility of persecution, danger of torture, risk to life or risk of cruel
and unusual treatment or punishment
in his country, as a result of his religious beliefs, activities or practices.
[18]
The
applicant has submitted evidence that he converted to Christianity in 2009 and
that he was baptised in 2011. However, he did not present evidence of any
religious activities outside his conversion or of his intention of being active
and/or of proselytizing if
he were to return to Algeria.
[19]
As
Justice Dubé held in Yang v Canada (Minister of Citizenship and
Immigration), 2001 FCT 1052, at paras 72 and 73:
“Persecution for “reason of religion” may assume
various forms, e.g. prohibition of membership of a religious community, of
worship in private or in public, of religious instruction, or serious measures
of discrimination imposed on persons because they practice their religion or
belong to a particular religious community.
Mere membership of a particular religious community
will normally not be enough to substantiate a claim to refugee status. There
may, however, be special circumstances where mere membership can be sufficient
ground.”
[20]
The
applicant relies on the decision of this Court in AB v Canada (Minister of Citizenship and Immigration), 2009 FC 325 where the applicant feared
returning to Iran after having rejected Islam since arriving in Canada. There was evidence before the PRRA officer in that case that apostasy was a serious
crime in Iran and that it was punishable by the death penalty. Therefore, a
reasonable analysis of the evidence specific to the applicant in that case led
to a conclusion that he would be facing more than a mere possibility of persecution in Iran, as a
result of his religious beliefs, activities or practices.
[21]
The
facts of this case are different and it cannot be said that the PRRA officer
ignored the applicant’s personal situation, nor the documentary evidence before
it.
[22]
The
PRRA officer explicitly rejected the evidence of mandatory and forced
observance of Islamic practices and the potential use of penal sanctions
against Muslim and non-Muslim citizens to assure the required observance, on
the basis that such practices “do not prevent people such as the applicant to
practice their faith”, and concluded, as a result, that the evidence was
insufficient to support that the applicant would face a risk of persecution as
he claimed (PRRA officer’s reasons, p. 7). That finding falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law,” in
light of the specific circumstances of the applicant (Dunsmuir, above,
at para 47).
[23]
It was open
to the PRRA officer to find, based on a careful
analysis of the evidence and a proper balancing of the elements contained
therein, that the applicant’s claim, considering the level of his religious
activities, was not supported by the Amnesty International report or other
confirmative evidence presented by the applicant.
[24]
The officer
also reasonably read down the ambit of risks faced by the applicant as a Christian
convert in Algeria, by concluding that the risk of being arrested and charged
for having a Bible in his possession is limited, considering the evidence that
he has not engaged in religious activities outside of his conversion to
Christianity and that he does not intend to engage in religious proselytizing
or practice in an unregistered religious centre. This is true even if the
Amnesty International 2009 report on Algeria and other documentary evidence, such
as Ireland’s Refugee Documentation Centre report, dated July 19, 2010, report
several cases of Christian converts being arrested and prosecuted both for
possession and distribution of Christian materials.
[25]
For the
foregoing reasons, this application for judicial review will be dismissed.
[26]
Counsel for
the parties did not propose a question of general importance for certification
and none arises in this case.
[27]
The parties
requested that the style of cause be amended to reflect the correct spelling of
the applicant’s name, as it is stated in his birth certificate. It will so be
ordered.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
There is no
question to be certified.
3.
The style of
cause shall be amended to reflect the correct spelling of the applicant’s name,
as it is stated in his birth certificate.
"Jocelyne
Gagné"
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