Date:
20130820
Docket:
IMM-12403-12
Citation:
2013 FC 884
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, August 20, 2013
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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MOHAMED DJOUAH
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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]
The
applicant, Mr. Djouah, is a young dancer in the Algerian ballet, a member
of his country’s national ballet. He seeks judicial review of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (the panel)
dated November 7, 2012, which determined that he is not a Convention
refugee or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act).
I. Background
[2]
On
November 5, 2010, the applicant arrived in Canada with a national ballet company
to participate in a two‑show tour in Ottawa and Montréal. He then decided,
like the seven other dancers in his company, to seek refugee protection in Canada.
He based his claim on his fear of persecution, as a ballet dancer, by the
authorities in his country and by Islamist extremists in whose eyes ballet and
art are linked to homosexuality and depraved acts.
[3]
Since
the age of thirteen, the applicant has danced for different professional ballet
companies. He has been threatened and persecuted by Islamist extremists
throughout his entire artistic life. He went to the police several times to
report these acts, but neither the national ballet directors nor the Algerian
police, he says, have ever wanted to intervene to protect the dancers and
ensure their safety.
[4]
Moreover,
the national ballet directors threatened the applicant and the other members of
his group with prosecution on their return to Algeria for having sought refugee
protection in Canada, an event that was widely publicized in Algeria.
II. Impugned
decision
[5]
The
panel rejected the applicant’s refugee claim essentially for three reasons.
[6]
First,
the panel noted that, in the six‑page narrative attached to his Personal
Information Form (PIF), the applicant did not indicate that he had taken steps
to obtain the protection of the Algerian state. At the hearing of his
application, he claimed that he had done this [translation]
“every time” he was threatened. The applicant explained that he had written his
narrative in a general way and had wanted to mention his problems rather than
the steps taken to try to resolve them. The panel did not accept this
explanation and found that it affected the applicant’s credibility.
.
[7]
According
to the panel, the applicant did not substantiate, even in a small way, the
Algerian state’s lack of protection. Therefore, the applicant did not rebut
through “clear and convincing” evidence, including the newspaper articles filed
and the objective documentary evidence, the presumption that Algeria, like any
other state that is not experiencing a complete breakdown of the state
apparatus, is generally able to protect its citizens (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, at
para 50; Canada (Minister of Employment and Immigration) v Villafranca (FCA),
[1992] FCJ No 1189, at para 7).
[8]
Second,
it was not until the end of the hearing that the applicant submitted that he
feared not only Islamist extremists and terrorists, but also the Algerian
authorities. The panel stated that this aspect of the application was not in
the applicant’s PIF and drew a negative credibility inference from this
omission.
[9]
Third,
the panel did not assign any probative value to the newspaper article that states
that the applicant, like the other members of the national ballet who sought
refugee protection in Canada, would be expected and could face criminal charges
in his country. This article, published in the November 22, 2010, edition
of the Al Chourouk newspaper, quotes the former director of the national
ballet, who is currently in a senior position at the department of culture,
when she stated that the “ballet’s management will take draconian measures
against members of the ballet who have fled. They will be punished and sent
back or they will be prosecuted, in addition to measures taken
by the government if they return to
the country. . . . They are the losers. They will bear the
consequences of their awe for Canada.”
[10]
The
panel found that, contrary to the applicant’s submissions, nothing in that
article indicates that he was likely to be imprisoned and tortured on his
return to Algeria. The panel added that there was no evidence before it
establishing that the applicant would be persecuted by the Algerian state if
returned to his country. In addition, the panel drew a negative inference about
the applicant’s credibility from the fact that he did not file the document
until the end of his hearing and from the fact that an official translation was
not filed until the panel asked for one. It added that, according to another
article in the file, the Algerian ambassador to Canada personally promised to assist
the dancers in returning to Algeria.
[11]
Finally,
the panel noted that the documentary evidence referring to the hostile
treatment of failed refugee claimants returned to Algeria who are suspected of
taking part in international terrorism (National Documentation Package on
Algeria, June 8, 2012, tab 14.2, DZA101152.EF. May 26, 2006. Treatment
of failed refugee claimants returned to Algeria; whether low‑ranking
police officers or members of the security forces would be subject to any
reprisal from state authorities) does not apply to the applicant.
[12]
The
panel therefore concluded that the applicant had not discharged his burden of
establishing that there was a serious possibility he would be persecuted on one
of the Convention grounds or that, on a balance of probabilities, he would be
subjected personally to a danger of torture, a risk to his life or to a risk of
cruel and unusual treatment or punishment if he returned to his country.
III. Issues
[13]
Essentially,
the applicant is challenging two aspects of the panel’s decision in his
application for review. The issues may be formulated as follows:
1. Were the panel’s
findings on state protection that was available to the applicant reasonable?
2. Did
the panel err in its assessment of the applicant’s credibility and the basis for
his claim as a “refugee sur place”?
[14]
There
is no dispute that the reasonableness standard applies to both of these issues
(see, for example, Rios v Canada (Minister of Citizenship and Immigration),
2012 FC 276, at para 56‑60; Lezama v Canada (Minister of Citizenship
and Immigration), 2011 FC 986, at para 19‑22; W.O.A. v Canada
(Minister of Citizenship and Immigration), 2011 FC 827, at para 3-4; and A.D.
v Canada (Minister of Citizenship and Immigration), 2011 FC 584, at para
15, 23‑24).
IV. Analysis
and decision
[15]
For
the following reasons, the applicant’s application for judicial review will be
allowed.
Panel’s findings on state
protection available to the applicant
[16]
After
reviewing all the evidence, it is apparent that the panel erred in its
assessment of the applicant’s alleged grounds of persecution. He clearly stated
both at the hearing and in his claim for refugee protection signed on
September 20, 2010 (form IMM 5611, p.128
of the Tribunal Record), that he was threatened by the Algerian state and that
his safety would be compromised if he returned to Algeria. This error by the
panel unduly undermined the applicant’s credibility.
[17]
Moreover,
where it is alleged that the state itself is an agent of persecution and in the
absence of a genuine analysis of a refugee claimant’s prospective subjective
fear of prosecution, any finding that the applicant could have sought state
protection becomes superficial and may be reviewed by the Court. I find the
remarks of Justice Martineau in Pikulin v Canada (Minister of
Citizenship and Immigration), 2010 FC 979, at para 20‑24, relevant on
this point:
20. Once again, the issue is
rather to determine whether in fact the refugee claimant or similarly situated
persons are persecuted or have serious reasons to fear that they will be
persecuted (where applicable, further to the enforcement of the law in question
by representatives of the state).
21. Moreover, in terms of the
objective basis for the fear of persecution, the panel must consider, based on
credible evidence in the record, whether it would be objectively unreasonable
for the claimant not to have sought state protection before seeking protection
in Canada (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at
paragraph 49 (Ward); Capitaine, above, at paragraphs 20 to 22).
22. Of course, at
this stage of the panel’s analysis, the refugee claimant was believed;
otherwise, the entire exercise loses its meaning and purpose (Flores, above, at paragraphs
29 to 32).
23. That being said, in a
case where a refugee claimant claims that the agent of persecution is the state
itself or one of its agents, can the democratic nature of the state serve as a
universal screen, allowing the panel to reject a refugee claim without a
serious analysis of the specific reasons for the fear of persecution and the
personal situation of that individual?
24. To
ask the question is to answer it: in assessing the possibility for a claimant
to obtain state protection, the panel must take into account the claimant’s
personal situation and the various means at his or her disposal, including the
claimant’s own testimony about personal incidents during which state protection
was not provided, without disregarding the documentary evidence in the record
and the testimony of similarly situated persons (Ward, above, at paragraph
50; Jabbour, above, at paragraphs 22, 23 and 31; Zaatreh v. Canada (Minister
of Citizenship and Immigration), 2010 FC 211, at paragraphs 38 and 55).
[Emphasis
added]
[18]
Contrary
to what the respondent argued before the Court, it was not sufficient to assess
the protection offered to artists in Algeria, while acknowledging that their
situation [translation] “is not
perfect”, or the efforts and various measures the Algerian government has taken
to fight against terrorism.
[19]
The
necessity of considering applicants’ personal situations and the means
available to them to obtain the protection of their own state also applies
where applicants submit that they are refugees sur place and fear being
persecuted by governmental authorities if they return to their country. The
panel erred by rejecting the applicant’s claim that he was at risk of being
persecuted by the Algerian state, on the ground that “only at the very end of
his hearing did he claim to fear the authorities in his country.”
[20]
All
the evidence shows that this was one of the alleged risks of persecution, and
the panel could not disregard it at least with respect to the claim for refugee
sur place status, which arose out of events that
occurred since the applicant has been in Canada.
Assessment of the applicant’s
credibility and the basis for his claim as a “refugee sur place”
[21]
Regarding
the evidence, the panel’s primary error was failing to analyze the claim for
refugee protection under subsection 97(1) of the Act. The documentary
evidence presented by the applicant in support of this aspect of his claim was
relevant and credible, and the panel erred by refusing to assign it the
probative value it deserved. This error was probably due to a misapprehension
of the very basis of the applicant’s claim for refugee protection.
[22]
The
article that appeared in the Al Chourouk newspaper, translated from Arabic to
French during the hearing by the panel’s interpreter, clearly refers to threats
of reprisal against all the members of the troupe who had claimed refugee
protection in Canada. The Algerian national ballet is a state institution. The
article noted the fact that Ms. Kouadri, former director of the national
ballet, is now in a senior position at the ministry of culture and that she was
interviewed in that capacity. The panel did not provide any valid reason for
rejecting this evidence that it had, moreover, agreed to consider except for
the fact that the article should have been translated and filed prior to the
hearing. This ground is not sufficient in the circumstances to reject evidence
that is relevant and probative.
[23]
Finally,
the panel erred by ignoring the article Danse avec les loups [dances
with wolves], which appeared in the Algerian newspaper El Watan and was filed
in evidence prior to the hearing. It states [translation]
“statements made by one of the officials at the embassy [Algerian in Canada]
who, once the information about a dance troupe refusing to return to the
country was confirmed, promised to ‘bring them back in handcuffs’ and
especially, in pure CIA style, threatened to harm their families in Algeria.”
[24]
Considering
these threats made publicly by the Algerian authorities against the applicant
and his troupe, it is difficult to accept that the applicant was speculating
when he said that he feared for his safety. Consequently, the application for
judicial review should be allowed and the matter remitted to the panel for
reconsideration and review by a different panel. .
[25]
Last,
from a strictly practical point of view, the panel’s decision regarding the
applicant cannot stand in the context where his seven colleagues were granted
refugee status in Canada on the basis of the same facts and evidence that the
applicant relied on (Exhibit D to the applicant’s supplementary affidavit dated
May 9, 2013). In the circumstances, I believe there is a risk that the
applicant would become a scapegoat and would have to pay the price for his
colleagues if returned to Algeria.
[26]
Counsel
for the parties did not suggest any question of general importance for
certification and this case does not raise any.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES as follows:
1. This
application for judicial review of the decision dated November 7, 2012, by
the Refugee Protection Division of the Immigration and Refugee Board is
allowed. .
2. The
matter is remitted to a differently constituted panel of the Refugee Protection
Division for reconsideration on the merits.
3. No
question of general importance is certified.
“Jocelyne Gagné”
Certified true
translation
Mary Jo Egan,
LLB
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