Date:
20130830
Docket:
IMM-6691-12
Citation:
2013 FC 925
Ottawa, Ontario,
August 30, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
|
|
MAHMOUD RIAD MAHMOUD AL-AWAMLEH
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision that the
applicant was not a Convention refugee or a person in need of protection.
Background
[2]
Mr.
Al-Awamleh was born in Jordan in 1980. He testified that in the summer 2008 he was
a witness to an attempted sexual assault against a neighbour. He chased the
perpetrator and recognized him and testified to that effect in court despite
attempts by the family of the accused to bribe him and threaten him to
refrain. The perpetrator was convicted and given a seven-year sentence. A
subpoena in the applicant’s name was entered into evidence to corroborate this.
[3]
The
applicant stated that the family of the criminal was involved in drug
trafficking. Soon after the conviction, four of the offender’s brothers
assaulted the applicant. He reported the attack to the police and was treated
for cuts at the hospital. His father then decided that they should relocate to
a different neighbourhood. However, two of the brothers then turned up at the
applicant’s office in February 2010, looking for him. He called the police and
then went to the police station. An officer there advised him that unless the
brothers were arrested, he would always be in some danger because there was no
witness-protection program in Jordan, and that he would be safest if he were in
an isolated cell or left the country.
[4]
The
applicant took a leave of absence and researched safe destinations. He decided
to apply for a student visa to Canada, since it would be granted for longer
than the six months of a visitor visa; he hoped that upon his return the
brothers would be in jail. The visa was granted in May 2010.
[5]
The
applicant put off leaving twice, because he had a well-paid job, family, and
friends in Jordan, and he had not been bothered by the brothers since
February. Then, on September 20, 2010, a car followed his. In a sparsely populated
area, it pulled level with his car and the passenger shot at him several
times. He was not injured and went straight to the police station.
[6]
The
next day, the applicant resigned from his job, asking to be allowed to leave
immediately, without the normal four weeks’ notice. He booked the first
available flight to Canada, hid at a friend’s house until it was time to leave,
and arrived in Montreal on September 23, 2010. In November 2010, he heard from
family in Jordan that his brother had been attacked and that the attackers had
said that this was a message to him. At that point, he realized that it would
never be safe for him to return, and made a refugee claim.
[7]
He
supported his claim with the witness subpoena from the assault trial,
photographs of his bullet-riddled car, medical reports dated July 25, 2008 and
November 15, 2010, security services reports dated September 20, 2010 and
November 11, 2010, and a letter from his former employer in Amman dated April
13, 2011, stating that two suspicious men had been demanding to know the
applicant’s whereabouts.
Impugned
decision
[8]
The
Refugee Protection Division [RPD or the Panel] heard the claim on May 29, 2012,
and rendered its decision on June 7, 2012. The Panel found that being the
victim of criminal retribution was not a situation with a nexus to the
Convention grounds listed in section 96 of the IRPA (Zefi v Canada (MCI),
2003 FCT 636). It then examined whether the claimant was a person in need of
protection pursuant to section 97 of the IRPA. It assessed that the claimant
had not rebutted the presumption of adequate state protection in Jordan. The police had taken his statements on each occasion, even though no arrests had
been made to date. There was no evidence that they had not taken the matter
seriously and the claimant had not taken steps to complain to other agencies.
A forward-looking assessment did not suggest that if he were returned to Jordan, he would not be afforded adequate state protection. The RPD rejected the claim.
Issue
[9]
The
issue is whether the RPD erred in determining that there was adequate state
protection available to the applicant in Jordan.
Standard of
review
[10]
As
Justice O’Keefe recently noted in Burai v Canada (MCI), 2013 FC 565, at
paras 25-27:
[25]
Where previous jurisprudence has determined the standard of review applicable
to a particular issue before the court, the reviewing court may adopt that
standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paragraph 57).
[26]
Issues of state protection and of the weighing, interpretation and assessment
of evidence are reviewable on a reasonableness standard (see Ipina v Canada
(Minister of Citizenship and Immigration), 2011 FC 733, [2011] FCJ No 924 at
paragraph 5; and Oluwafemi v Canada (Minister of Citizenship and Immigration),
2009 FC 1045, [2009] FCJ No 1286 at paragraph 38).
[27]
In reviewing the Panel's decision on the standard of reasonableness, the Court
should not intervene unless the Panel 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, at paragraph 47;
Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held in Khosa above, 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
(at paragraph 59).
[11]
The
standard of review in the present case is reasonableness.
Analysis
State
Protection
[12]
It
is common ground that refugee protection is intended only to be engaged in
situations where protection from one’s home state is unavailable and that,
except in situations where there has been a complete breakdown of the state
apparatus, there is a presumption that the state is capable of protecting its
citizens. Canada (AG) v Ward, [1993] 2 S.C.R. 689 at para 50.
[13]
Evidence
sufficient to rebut the presumption on a balance of probabilities must be
“clear and convincing” that the applicant is unable to avail
himself of the protection of his country of nationality. Hinzman
v Canada (MCI), 2007 FCA 171 at para 54.
[14]
The
test for state protection is adequacy and not effectiveness. It is not enough
for a claimant to show that his/her government has not always been effective at
protecting people in his/her particular situation. The protection offered by
the state need not be perfect, nor can a state protect its citizens all the
time. Canada (MEI)
v Villafranca,
[1992] FCJ No 1189; Samuel v Canada (MCI), 2012
FC 967; Suarez Flores v Canada (MCI), 2008 FC 723.
Did the Panel
Apply the Wrong Test?
[15]
The
applicant argues that the Panel asked the wrong question in considering whether
“the authorities took the matter seriously”. He submits that it should rather
have considered whether effective protection was provided. The Panel mentioned
on a number of occasions that the evidence did not demonstrate that the
authorities were not taking the case seriously with a view to arresting and
prosecuting the offender. I do not take this, however, as evidence that the
Panel had misdirected itself, inasmuch as it correctly stated the test at the
beginning and stated its conclusion as whether the applicant would be more
likely than not be at substantial risk or danger due to the non-availability of
state protection were he to return to Jordan.
[16]
I
consider the issue of the police taking his complaints seriously and
appropriately investigating them to be pertinent to demonstrating that the
protection the police provided was adequate. If the complainant’s evidence had established
that the police were not serious about investigating and arresting the
perpetrators of the acts complained of, then this would go towards demonstrating
the lack of availability of state protection.
[17]
That
does not mean that the Panel did not consider other evidence to demonstrate the
adequacy of police protection; merely that its conclusion that serious efforts
were being made to investigate and arrest the wrongdoers supports the
conclusion that the protection was adequate.
Did
the Panel Misapprehend the Evidence in the Failing to Consider the
Complainant’s Discussion with the Police?
[18]
The
applicant submits that the Panel failed to consider important evidence,
although it accepted it as credible, that the police advised him that he would
always have some risk and that it would be safest if he was kept in an isolated
cell or left the country.
[19]
In
support of this submission, he refers to the decision of de Montigny J. in Alassouli
v Canada (MCI), 2011 FC 998 [Alassouli]. In that case the claimant,
also a citizen of Jordan, was a witness in a murder trial in Jordan and reported to the police that the family of the accused, who was convicted, had
harassed him with threats of violence and murder because they were angry about
his testimony. There was evidence that the police had intervened to have the
culpable party sign an undertaking to keep the peace, which demonstrated an
apparent willingness on the part of the police to take steps to provide
protection. There was also reliable evidence in the form of a letter from the mayor
attesting to the fact, that because the complainant had been asked to testify, “his
presence inside the country threatens his life at the hands of the parties in
the case”. The
Panel did not accept that the mayor would indicate his country’s inability to
protect one of its own citizens and finally concluded that the letter was to be
given little weight.
[20]
The
Court found that the letter from the mayor was an important piece of evidence
refuting the presumption of state protection and that, given the importance of
the content of the letter, the correctness of the RPD decision to give it no
weight was critical to the overall decision on state protection. The court
commented as follows at paragraph 34 of its reasons:
[34]
The
Panel’s decision to reject it is dubious for a number of reasons. First
of all, the Panel appears to have completely misinterpreted the letter and took
only the part that was in conformity with its conclusion. The letter
clearly states that the applicant is in danger at the hands of the parties, but
the Panel focused instead on whether the Mayor believes that reconciliation
will one day occur. In so doing, the Panel fails to address the fact that
the Mayor explained that until the reconciliation occurs, the applicant is not
safe within the country. Contrary to the Panel’s finding, what matters is
not whether reconciliation would eventually occur in the opinion of the Mayor,
but whether the applicant would be in danger if he were to return home at the
time of the RPD determination.
[21]
The
situation is quite different in this matter inasmuch as there is no express statement
by the Panel that it would not attribute any weight to the applicant’s conversation
with the police. Moreover, there were a number of related problems with how the
Panel dealt with the matter in Alassouli
having to do with its emphasis on a pending reconciliation and its failure to
focus on the complainant’s situation. The Court found that the Panel
never discussed the possibility that the complainant could be the primary
target of tribal revenge because he appeared as a witness in the murder trial.
Instead, it focused on the fact that the documentary evidence did not mention
individuals as being the target of blood feuds. The Court indicated that in so
doing, the Panel failed to acknowledge the applicant’s particular circumstances.
That is not the case here, where the Panel specifically concluded:
“In
examining this case further, it is relatively clear to the panel that the
claimant is personally being targeted by persons who are related or somehow
affiliated to the person the claimant gave evidence against in court […]”
[22]
Also
in Alassouli, the
Court had found that the Panel unfairly concluded that the complainant was not
credible. Credibility is a form of lynch-pin issue that often determines outcomes.
The rejection of the mayor’s evidence was an example of its failure to deal
properly with the facts. The Panel in this matter has accepted that the
applicant was credible.
[23]
That
does not mean, however, that the applicant’s evidence should be treated in the
same manner as that of the mayor speaking for his community as an objective
third party out-of-court witness confirming the perilous situation of the
applicant and committing his views to paper. While the Panel accepts that the
complainant was credible, there always remain issues as to the reliability and
weight to be given to uncorroborated hearsay testimony and, more importantly, the
interpretation of the discussion out of the mouth of the complainant when the
police officer was not available to testify or be cross-examined.
[24]
The
respondent argues that the statement by the police was simply that they could
not guarantee the applicant’s safety. It is therefore not a surprising situation
for someone who was being targeted. What the police were really saying is the
only way to guarantee the applicant’s safety was for him to be in a
police cell or to leave the country. In some respects, this is the case for
anyone who is targeted. Examples abound in Canada and elsewhere of warnings and
police efforts not resulting in protecting a previously identified at-risk
person.
[25]
In
the circumstances, I am not prepared to conclude that the failure to refer to
the complainant’s discussion with the police was not considered by the Panel. A
tribunal is presumed to have considered all of the evidence unless that
presumption is rebutted and I am not satisfied the presumption has been rebutted
in these circumstances (Florea v Canada (MEI), [1993] FCJ No 598 (QL)
(FCA)).
[26]
Nor
am I satisfied that the evidence, had it not been considered, would have been
determinative or affected the outcome of the case. Not only is it unclear as to
whether the police were indicating that they could not “guarantee” the
applicant’s safety, but a local failure to provide protection does not amount
to a lack of state protection; the applicant could have complained further to
other agencies (Kadenko v Canada (MCI) (1996), 143 DLR (4th) 532 (FCA)).
Is
the Decision Reasonable?
[27]
There
is evidence upon which the Panel could conclude that state protection was
available. The applicant provided evidence of active police investigation at
many points of his testimony. Moreover, the complainant’s situation started
from a successful investigation and conviction of the person who committed the
crime which he witnessed and against whom he testified.
[28]
The
fact that the police had not arrested anyone in conjunction with the incidents
the applicant reported does not provide clear and convincing evidence that the
police failed to respond to the applicant’s complaints or that the protection
provided in response to the complaints was inadequate.
[29]
Although
this Court may have come to a different conclusion on the evidence, it is
required to demonstrate deference to the Panel and the decision falls within
the possible, acceptable outcomes that are defensible in facts and in law.
Conclusion
[30]
For
these reasons, the application is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed.
“Peter Annis”
Email this Content