Docket: IMM-1441-14
Citation:
2014 FC 1156
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa. Ontario, December 1, 2014
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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SOUMAYA AKHROUF YAHIA AISSA, MERIEM MARIA AKHROUF and
MOHAMED DJAOUED AKROUF
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision by the Refugee Protection Division (RPD) of
the Immigration and Refugee Board, dated January 30, 2014, rejecting the
applicants’ claim for refugee protection and finding that the applicants are
neither “Convention refugees” nor “persons in need of protection” under sections 96 and
97 of the IRPA.
[2]
For the reasons set out below, I am of the view that the application for judicial review
must be dismissed.
II.
Alleged facts
[3]
The principal refugee claimant, Soumaya Akhrouf
Yahia Aissa (the female applicant), and her children are Algerian citizens. The
female applicant was appointed as the designated representative of her two
minor children.
[4]
In February 2002, the female applicant divorced her
first husband, in Algeria, after he was convicted of a criminal offence and
imprisoned.
[5]
On December 18, 2003, she married Abdel Moumene
Akhrouf (the husband). They had a happy marriage until the female applicant
became pregnant in 2004. The husband did not want to have children and tried to
get her to have an abortion. However, the female applicant refused.
[6]
When the female applicant was six months
pregnant, her husband told her that he wished to marry a second wife. Upon
learning this, the female applicant left the matrimonial home and went to live
with her parents. However, the female applicant’s parents pushed her to return
to her husband; a second divorce would have brought great dishonour to their
family. Under pressure, the female applicant returned to her husband.
[7]
The husband subsequently married his second wife
and the female applicant alleges that after she gave birth the husband only
visited her sporadically to give her money.
[8]
In 2007, the female applicant became pregnant
again and her husband encouraged her to have an abortion. When the female applicant
refused to have an abortion, the husband allegedly abandoned her for several
months. The female applicant said that she then asked for a divorce, which the
husband reportedly refused.
[9]
The female applicant submits that the violence
against her began a few months later. The female applicant alleges that her
husband beat her, insulted her, forced her to wear a hijab and prevented her
from taking her kids to school or to the doctor. The female applicant submits
that the abuse she suffered got worse over the years.
[10]
When the female applicant became pregnant for
the third time, her husband and his brother allegedly forced her to have an
abortion. To that end, the two men reportedly administered medication to her by
injection.
[11]
Between 2005 and 2010, the husband took the
female applicant on four trips: Morocco (2005), Tunisia (2008), Spain (2009) and
Italy (2010). Furthermore, in May 2010, the husband suggested to the female applicant
that she go visit her brother in Montréal with the children, telling her that
he would join them later. However, the husband did not join the female applicant
and, for that reason, she believed he wanted to get rid of her. After having
spent two months in Canada, the female applicant asked that her husband buy her
return tickets, which he only did under pressure from the female applicant’s
family.
[12]
The female applicant submits that upon her return
to Algeria, the abuse she suffered at the hands of her husband increased. She
alleges that she was confined, called names and slapped. Furthermore, her
husband reportedly took her car away from her.
[13]
During a visit by the female applicant to her parents,
her husband allegedly changed the locks of the house and informed the female applicant
that she would be forced to live in a dangerous neighbourhood for women. The
female applicant refused to move, and following the intervention of her husband’s
sister, her husband reconsidered his decision. The female applicant then apparently
filed for divorce, but submits that those around her were opposed to the idea. She
alleges that she consulted a lawyer about wanting a divorce, but he allegedly
informed her that she had no grounds for divorce.
[14]
Following these events, the female applicant decided
to leave her country and come to Canada.
[15]
The female applicant and her two children arrived
in Montréal on December 10, 2010.
[16]
On December 11, 2010, the female applicant’s
parents supposedly informed her by telephone that her husband allegedly
threatened them and informed them that he would use his contacts to come to
Montréal to take her back to Algeria.
[17]
On January 25, 2011, the female applicant and
her two children filed claims as refugees and persons
in need of protection with the Citizenship and Immigration Canada office.
[18]
On April 29, 2011, the female applicant filed an
application for separation from bed and board and for custody of her two minor
children before the Superior Court of Québec. For his part, the female applicant’s
husband brought a motion of declinatory exception to challenge the jurisdiction
of the Superior Court of Québec. On November 21, 2011, the Superior Court of
Québec rendered a judgment declaring that it had jurisdiction to rule on the
merits of the motion. On May 14, 2013, the Court of Appeal of Québec, per Justice
Bich, unanimously set aside the decision of the Superior Court of Québec (Droit
de la famille – 131294, 2013 QCCA 883).
[19]
On May 30, 2011, a default judgment ordering the
female applicant to return to the matrimonial home was rendered by an Algerian
family court.
[20]
On May 26, 2011, an Algerian criminal court
rendered a decision sentencing the female applicant to a term of imprisonment
of two months and a fine of 50,000 dinars. She was convicted of abandoning the
matrimonial home.
[21]
On January 20, 2013, the Al-Harrach Algerian
court rendered another decision sentencing the female applicant to a term of
imprisonment of one year and a fine of 600,000 dinars.
[22]
The female applicant claimed refugee status to
avoid reprisals and abuse by her husband and his brothers. She states that she
wanted to escape from an extremist mentality based on the wearing of the hijab,
compliance with Sharia law and a woman’s submission to the authority of her husband
and his family.
III.
Decision
[23]
The heart of the determination of the RPD rests
on the female applicant’s lack of credibility and on the lack of reasonable or
serious possibility that the female applicant and her children would be persecuted
if they were to return to Algeria.
[24]
To assess the credibility of the female applicant,
the RPD considered the prior decisions of the Superior Court of Québec and the
Appeal Court of Québec and the related files.
[25]
The RPD drew negative inferences as to the
female applicant’s credibility owing to (i) contradictions between her testimony
and her Personal Information Form (PIF); (ii) inconsistencies in some of
the facts related by the female applicant during her testimony; (iii) discrepancies
between the female applicant’s testimony and her expert witness’s report;
(iv) discrepancies between the female applicant’s exhibits and her
testimony; and (v) the fact that the judgment of the Court of Appeal of
Québec contradicts the female applicant’s testimony. Essentially, the RPD doubts
the female applicant’s testimony as to the conflictual relationship between her
and her husband. The RPD found that the female applicant was not the victim of
abuse at the hands of her husband, as alleged by her. The overall negative
inferences raised by the RPD were considered in this judgment and are
summarized in Appendix A.
[26]
The RPD also analyzed the female applicant’s
risk of persecution upon her return to Algeria.
[27]
Following an analysis of the expert witness’s credentials,
the RPD found that she is an expert in Algerian statutory law relating to
family matters. However, the RPD noted that she is not an expert in matters related
to torture.
[28]
The RPD considered the analysis of the expert
witness, but found that although the female applicant will face the full brunt
of the law upon her return to Algeria, nothing in the evidence indicates that
she will face persecution, discrimination or violation of her fundamental
rights. According to the RPD, a penalty consisting of serving a sentence of
imprisonment does not constitute a risk to life or cruel and unusual punishment
pursuant to section 97 of the IRPA. In support of its arguments, the RPD noted
that section 283 of the Criminal Code, RSC 1985, c C-46 provides that depriving
a father of the possession of his children is liable to a sentence of imprisonment
for a term not exceeding ten years.
[29]
Moreover, the RPD dismissed the understanding
and application of the concept of torture by the female applicant’s expert witness.
First, the RPD determined that given the female applicant’s weak credibility,
there is no evidence that she was the victim of violence. Second, contrary to
the expert witness’s submissions, the RPD is of the view that the female applicant
would not be tortured and detained upon her arrival at the airport. Finally, the
RPD determined that the female applicant’s incarceration in the female wing of a
prison intended for men, in accordance with the conditions of detention in
Algeria, would not constitute torture or persecution. The RPD nonetheless recognized
that such detention conditions are not consistent with international standards.
The RPD noted that the documentary evidence provided, the detention conditions of
Algerian women are better than those of men.
[30]
Furthermore, the RPD noted that there is the
possibility that the prison sentence could either be commuted or reduced in
duration as the affidavit submitted by the husband in support of his motion for
a declinatory exception states that he undertakes to abandon the proceedings
which he initiated in Algeria if the female applicant undertakes to return to
the matrimonial home. Moreover, according to the RPD, given the Algerian government’s
willingness to consider alternative sentencing for offenders and the fact that
the female applicant’s husband would support a revocation of judgment, there is
a possibility that the female applicant would not be compelled to serve her
prison sentence.
[31]
Finally, the RPD determined that the proceedings
instituted by the husband to be reunited with his children indicate that he is
attached to his children and that they would not be mistreated upon their return
to Algeria.
IV.
Issues
[32]
There are three issues:
1.
Did the RPD err in its assessment of the female applicant’s
credibility?
2.
Did the RPD err in its assessment of the risk of
persecution and cruel and unusual treatment or punishment?
3.
Did the RPD err in its analysis of the best
interests of the children?
V.
Parties’ submissions
A.
Applicants’ submissions
(1)
Credibility findings
[33]
The female applicant submits that the RPD erred
in its assessment of her credibility for the following reasons:
1.
The RPD’s findings that the female applicant implicitly
accepted her husband’s second marriage under pressure from her parents does not
change the fact that this situation was forced upon her.
2.
The RPD unreasonably found that it is
implausible that a second divorce was a source of dishonour for the female applicant’s
parents, as it was required to assess cultural norms with extreme caution (Giron
v Canada (Minister of Employment and Immigration), [1992] FCJ No 481 (FCA)
(QL)).
3.
The RPD failed to rely on real and not illusory implausibility
(Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No
732 (FCA) (QL) [Aguebor]) in finding that the explanation for the
religious divorce is not sufficient to make plausible the fact that the female applicant
asked her husband for a divorce in 2007.
4.
The female applicant’s explanation to justify
why she continued to have intimate relations with her husband is reasonable and
should not have been rejected based on speculation by the Court of Appeal of
Québec.
5.
The RPD did not consider all of the female applicant’s
explanations by finding that she did not experience abuse following her refusal
to have an abortion in 2007, such as the fact that she was forced to wear a ball
cap instead of a hijab when she traveled.
6.
The RPD unreasonably drew negative inferences from
the female applicant’s return to Algeria in September 2010.
[34]
In addition, the female applicant submits that
the negative inferences as to the female applicant’s credibility were not based
on all the evidence before the RPD. The RPD ignored the husband’s bigamy, the
possible manipulation of the state registrar raised by the expert witness
allowing the husband’s second marriage, the threats from the husband’s brothers
and the domestic violence.
[35]
The female applicant argues that the RPD erred in
its application of the Chairperson’s Guideline 4:
Women Refugee Claimants Fearing Gender-Related Persecution (Guideline
4). According to that guideline, the RPD was required to consider the impact
of domestic violence on the female applicant’s behaviour. Although deference should
be owed to the credibility findings, failure to consider Guideline 4 is
a palpable error (Njeri v Canada (Citizenship and Immigration), 2009 FC
291 [Njeri]).
[36]
The female applicant also submits that the RPD gave
too much weight to the findings of the Court of Appeal of Québec and the
Superior Court of Québec case.
(2)
Persecution and the risk of cruel and unusual treatment or punishment
[37]
First, the female applicant notes that the expert
witness found that a return to Algeria would deprive her of her children, her civil
and civic rights, and her family.
[38]
The female applicant also submits that the RPD
erred in summarily finding the female applicant guilty without her ever being
charged and that the risk of imprisonment is the result of lawful sanctions.
[39]
Furthermore, the female applicant criticized the
RPD’s logic that the female applicant was not the victim of cruel punishment since
the abduction of a child by a parent with intent to deprive the other parent
who has the lawful care or charge of the child of the possession of the child is
punishable by a term of imprisonment of ten years in Canada. The female applicant
notes that she was not convicted of [Translation]
“child abduction”, but of [Translation] “family
abandonment” and [Translation]
“family neglect”. Furthermore, the female applicant
argues that the RPD failed to analyze the punishment imposed in Algeria in the
light of international law and restricted its analysis to the compliance of
detention standards with international law.
[40]
The female applicant argues that the RPD should
not have considered her husband’s testimony to determine the female applicant’s
reasons for returning to Algeria in 2010, as his explanation is no more
reasonable than that of the female applicant. Furthermore, the female applicant
notes that her husband was not heard by the panel and was therefore not
cross-examined by the female applicant and her counsel.
(3)
The reasons for the children’s claims
[41]
The female applicant argues that the panel
should have considered the uncontradicted evidence that the husband is an absentee
father who did not take care of his children.
[42]
Moreover, the female applicant submits that the RPD
erred in finding that the proceedings instituted by the husband in Algeria
indicate that the children are precious to their father.
[43]
The female applicant also submits that the panel
should have followed Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, by placing greater emphasis on the best interests of the
child, in accordance with the international conventions signed by Canada. In
addition, the female applicant submits that in accordance with the Chairperson Guideline 3, Child Refugee Claimants
(Guideline 3), the RPD must consider objective factors where a child is
too young to give testimony. However, the female applicant submits that the RPD
violated those standards by ignoring the fact that the children would be deprived
of their mother upon their return to Algeria.
B.
Respondent’s submissions
[44]
The respondent begins with an analysis of the female
applicant’s behaviour regarding her first divorce in Algeria. The respondent submits
that although the female applicant stated that her first husband filed for
divorce, the female applicant’s expert witness submitted that the female applicant’s
first husband would have been unable to exercise his civil rights while in prison.
It was therefore legitimate for the RPD to find that the female applicant herself
filed for divorce and that she did not fear stigmatization within Algerian
society.
[45]
The respondent pointed out the factual contradictions
in the female applicant’s submissions with respect to her requests for divorce.
In her affidavit and PIF, the female applicant indicates that she asked her
husband for a divorce in 2007, although she testified that she filed for
divorce in 2010. The respondent notes that the female applicant stated that she
sought a religious divorce in 2007, but abandoned the idea upon her husband’s refusal.
The respondent submits that the female applicant’s explanation contradicts the opinion
of her expert witness noting that it is not the husband who determines whether
a divorce ought to be granted, but the judge.
[46]
The respondent also argues that the female applicant
was inconsistent by stating, before the Court of Appeal, that she learned about
her husband’s second marriage three months after its celebration while in her PIF
she stated that her husband told her about it prior to the marriage.
[47]
The respondent submits that there is contradiction
between the fact that the female applicant’s husband allegedly insisted that
she have an abortion in 2004, 2007 and 2009 and the fact that she continued to
have intimate relations with him to have children.
[48]
The respondent submits that there is
contradiction between the fact that the female applicant alleges having been
the victim of abuse and the fact that she travelled with her husband to Morocco
in 2005, to Tunisia in 2008, to Spain in 2009 and to Italy in 2010, and without
her husband to Canada in 2010. While on those trips, the respondent notes, the
female applicant did not wear a hijab.
[49]
Moreover, the respondent notes that the female applicant
had a credit card and a vehicle until summer 2010, which indicates that the
husband did not exercise excessive control on the female applicant.
[50]
The respondent submits that the RPD reasonably found
that the female applicant’s return to Algeria in 2010 was contradictory with
her version of the facts.
[51]
The respondent argues that the female applicant
simply referred to Guideline 4 without indicating
how the RPD erred. The respondent submits that Guideline
4 cannot be rehabilitate the female applicant’s credibility (Gyorgyjakab
v Canada (Minister of Citizenship and Immigration), 2005 FC 1119, at paragraph
13).
[52]
The respondent submits that the punishment imposed
on the female applicant by the Algerian courts cannot be regarded as persecution
or a risk that would make it possible to confer refugee protection, as the punishment
is prescribed by a law of general application (Zolfagharkhani v Canada (Minister
of Employment and Immigration), [1993] 3 FCR 540 (FCA) [Zolfagharkhani]).
In addition, the respondent submits that the RPD adequately considered all the risks
associated with the female applicant’s return to Algeria.
[53]
The respondent further argues that the expert witness
could not link domestic violence to torture insofar as the allegations of
domestic violence were not considered credible by the RPD.
[54]
With respect to the conditions of detention in Algeria,
the respondent reiterates the RPD’s argument that the conditions of detention for
women are better than those for men.
[55]
Finally, the respondent points out that there is
no evidence that the children would be subject to abuse upon their return to Algeria
as the husband has shown an interest in his children through the numerous legal
proceedings undertaken to see them again. Also, the respondent submits that to consider [Translation] “the
best interests of the child” as the female applicant submits, is inconsistent with the scheme of the IRPA, as
this is not an H&C application.
VI.
Analysis
A.
Standard of review
[56]
The reasonableness standard
applies to the assessment of the credibility (Baksh v Canada (Citizenship and Immigration),
2011 FC 1500, at paragraph 16). When Guideline 3 and Guideline 4
are used to assess the credibility of a refugee claimant, the standard of review of reasonableness is applied to
those guidelines (Hernandez v Canada (Citizenship and Immigration), 2009
FC 106, at paragraph 13; Correa Juarez v Canada (Citizenship and Immigration),
2010 FC 890, at paragraph 12 [Juarez]; Manege v Canada (Citizenship
and Immigration), 2014 FC 374, at paragraphs 12-14 [Manege]).
[57]
In the case at bar, the standard
of review of reasonableness is also applied to the findings of the RPD
concerning the risk of cruel and unusual treatment or
punishment, since it is a question of mixed
fact and law (Dunsmuir v New Brunswick, 2008 SCC 9, at paragraph
53 [Dunsmuir]).
[58]
As stated by the Supreme Court of Canada in Dunsmuir,
at paragraph 47:
In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
B.
Credibility analysis
[59]
The role of this Court in reviewing the RPD’s findings
regarding a claimant’s credibility is a limited one as the RPD is in a better position
to interpret the claimants’ answers, demeanor and behaviour during their hearing
(Aguebor, at paragraph 4; Rahal, at paragraph 42).
[60]
This Court owes findings of credibility a significant
measure of deference when assessing a claimant’s credibility (Njeri, at
paragraph 11). Based on the female applicant’s allegations, this Court must
also consider whether the RPD adequately considered Guideline 4. To the
extent that a female applicant files a refugee claim on the basis of
gender-related persecution, the RPD should be particularly sensitive to a female applicant’s difficulty in testifying, although Guideline
4 is not “intended to serve as a cure for all
deficiencies in the applicant’s claim or evidence” (Karanja v Canada
(Citizenship and Immigration), 2006 FC 574, at paragraph 5). This guideline
specifically applies to women who fear persecution as
a consequence for failing to conform to, or for transgressing, certain
gender-discriminating religious or customary laws and practices in their
country of origin.
[61]
While Guideline 4 need not be
specifically mentioned in a decision and is not the law, it must be apparent
from the decision that it was considered (Manege, at paragraph 26). However,
the failure to mention or fully apply Guideline 4
is not, on its own, fatal when determining whether the decision was unreasonable
(Manege, at paragraph 27; Henry v Canada (Citizenship and Immigration),
2013 FC 1084, at paragraph 50). According to Justice Pelletier in Newton v
Canada (Citizenship and Immigration), [2000] FCJ No 738 (QL), at paragraph 17,
“the question becomes whether the panel was sensitive
to the factors which may influence the testimony of women who have been the
victims of persecution” in determining whether the
failure to consider Guideline 4 is fatal.
[62]
Finally, Justice Kane’s analysis in Manege,
at paragraph 33, is likely to shed light on the scope to be given to the consideration
of Guideline 4:
In the present case, unlike Diallo,
the Board did not state that it did not have to consider the Guidelines.
However, as noted, I have no indication whether or not the Board did consider the
Guidelines. I have a similar concern about the circular nature of the argument
that the application of the Guidelines can not cure a credibility finding. In
my view, if the credibility finding is made without regard to the Guidelines,
or to the relevant context or circumstances, then the finding may not be
reasonable. It is not a matter of curing the finding, but of examining whether
the finding is reasonably made and if the appropriate youth or the gender-based
considerations had been taken into account.
[Emphasis added.]
[63]
In the case at bar, the female applicant states
that she is in a vulnerable position at the hands of her husband and claims
that she is living in an environment in which her freedom is being violated. She
claims that she was forcibly confined, abused and insulted. She claims that she
was forced to wear a hijab against her will and, although the respondent submits
that she was not wearing a hijab on her trips, the photographic evidence
reveals that she was wearing a ball cap and that she was therefore covering her
head while travelling.
[64]
While forced adherence
to strict Islamic religious codes may constitute “persecution” within the
meaning of section 96 of the IRPA or “cruel
treatment” within the meaning of section 97 of
the IRPA (Ghulam Redha v Canada (Citizenship and Immigration),
2013 FC 373, at paragraph 16), the numerous inconsistencies in the female applicant’s
testimony indicate that this is not such a case.
Furthermore, the decision reveals that the RPD treated the female applicant’s
submissions with consideration and sensitivity. Also, specific mention of Guideline
4 by the RPD is not required, but preferable, and the numerous inconsistencies
and gaps in the evidence in the female applicant’s record cannot be cured by
the application of Guideline 4.
[65]
I note that the RPD drew negative inferences from
the fact that the female applicant provided a contradictory version by alleging
in her PIF and her affidavit that she filed for divorce in 2007 and then stated,
upon examination, that she filed for divorce in 2010. During her testimony, the
female applicant rather claimed that she asked her husband for a divorce on a
number of occasions, but stated that it was in 2010, upon her return from Canada,
that she became more firm in saying that she wanted a divorce. On the one hand,
discrepancies between the versions of events offered
by a claimant could lead the RPD to draw negative inferences about the
claimant’s credibility (Su v Canada (Citizenship and Immigration), 2013
FC 518, at paragraph 8). On the other hand, the RPD examines claimants and is
in a unique position for their testimonies. I am of the view that it is not my place to substitute my judgment for that of the RPD,
which, all in all, is reasonable.
[66]
Moreover, why did the female applicant return to
her husband in 2010 when she was in Canada if, as she alleges, her husband was
so abusive that she ran away from him? This behaviour cannot be reasonably
explained. Considering that a claimant’s return to the country in regard to
which he or she alleges a fear of persecution allows the RPD to draw negative
inferences about the claimant’s subjective fear (Bromberg v Canada (Citizenship
and Immigration), [2002] FCJ No 1217 (QL), at paragraphs 23-24), I am of the
view that the RPD reasonably drew negative inferences from that part of the female
applicant’s testimony. Again, I do not believe that consideration of the
guideline can remedy the shortcomings in the female applicant’s allegations in
this regard.
[67]
The female applicant further stated that she returned
to Algeria in 2010 so that the children could start school (hearing transcript,
page 19). However, the female applicant also claimed that her children would be
abused if they were to return to Algeria. It seems to me that these two versions
are hard to reconcile. Moreover, the female applicant did not provide any convincing evidence of cruel treatment of the
children.
[68]
The RPD found that it was contradictory that the
female applicant asserts both that she was forced to have an abortion and that
she later had intimate relations with her husband in order to have children. If,
as the female applicant states, the control her husband had over her was such
that he had the power to force her to have an abortion, why was she hoping to
have children with him? During her examination, the female applicant indicated
that because she could not divorce a second time she was forced to have
children with a man who abused her. Hence, the female applicant intended to
have children with a man she could not run away from and then ran away from
that man to protect the children he did not want to have.
[69]
In addition, it seems inconsistent to me that the
husband, who, according to the female applicant, did not want to have children,
had two children with his second wife.
[70]
Taken in isolation, these shortcomings in the female
applicant’s testimony could possibly be explained in light of Guideline 4.
However, in considering the record as a whole, I am of the view that the RPD’s
decision is reasonable and defensible in respect of
the facts and the law.
[71]
Finally, it seems to me that one of the weakest
aspects of the female applicant’s testimony was the control her husband
exercised over her. On the one hand, the female applicant described her husband
as an absentee man, a man who showed up at her home only two weekends per month,
a man who wanted to get rid of her by sending her to Canada and who did not
take care of his children. On the other hand, the female applicant stated that her
husband exercised excessive control over her, that she could not listen to music,
that she could not go out, that she had to wear a hijab, that she could not
take her children to school or to the doctor. Even in an attempt to reconcile
these different versions, I am of the view that the RPD’s decision is reasonable.
[72]
All in all, it seems that the relationship
between the female applicant and her husband is highly conflictual. Nevertheless,
the female applicant has failed to demonstrate that the living conditions her
husband imposed on her justify a claim for refugee protection under sections 96
or 97 of the IRPA. The female applicant was given
an opportunity to provide psychological reports describing her state to support
her case, but she failed to do so. She was given an opportunity to provide letters
from close relatives corroborating her version, but she failed to do so. Indeed,
the female applicant provided conflicting testimony that does not make it
possible to establish that she had indeed been the victim of violence or abuse.
[73]
The female applicant further submits that the RPD
should not have based its findings on the decision of the Court of Appeal, as
the issue before the Superior Court was not the merits of the case. In Kovacs
v Canada (Citizenship and Immigration), 2005 FC 1473, at paragraph 10, the
Honourable Madam Justice Snider states:
Similarly, in this case,
I would say that the decision of the OSC is not binding on the Board.
Nevertheless, it is relevant and important evidence that places the Applicants'
claim in context. The Board is entitled to and, in fact, should take into
account the findings of the OSC where they are directly relevant to the facts
before the Board. However, the Board must carry out its own analysis and reach
its own conclusions on the matters before it; it cannot be bound by the actions
of the OSC, particularly where the issues and questions are different.
[Emphasis added.]
In the case at bar, I am of the view that
the RPD conducted its own analysis and considered the totality of the evidence
in the record, including the decision of the Court of Appeal. On the one hand,
the hearing transcript shows that the RPD dealt with the findings of the Court
of Appeal by considering the respondent’s version. On the other hand, provincial
court judgments are relevant and important evidence
that the RPD ought to have considered: Pacificador v Canada (Citizenship
and Immigration), 2003 FC 1462, at paragraph 83.
C.
Persecution and the risk of cruel and unusual
treatment or punishment
[74]
First, I accept, as the applicants point out,
that the RPD’s analysis based on section 283 of the Criminal Code is questionable.
The female applicant is not charged with child abduction in Algeria and,
therefore, the RPD should not have compared the ten-year sentence provided for
in section 283 of the Criminal Code to the sentence imposed on the
female applicant for [Translation]
“family abandonment” and [Translation] “family neglect”. However, that
does not indicate that the sentence imposed on the female applicant is cruel
and unusual.
[75]
According to the expert witness’s testimony before
the RPD, the female applicant will be subjected to the following upon her
return to Algeria:
1.
Arrest at the airport.
2.
Loss of custody of the children upon her arrival
and difficulty regaining custody of the children owing to the crime committed.
3.
Deprivation of liberty for a period of two
months.
4.
Difficulty in withdrawing from her marriage.
[76]
It appears to me that the legal process to which
the female applicant would be subjected upon her return to Algeria is harsh. No
person appreciating the importance of a united family would wish to see a
mother potentially denied custody of her children. However, since the female applicant
has failed to establish that she was the victim of abuse at the hands of her husband,
it is clear that she exposed herself to the laws of general application in Algeria
by leaving to come to Canada and by refusing to return to her country. I do not
believe it is unreasonable to conclude, as the RPD did, that the sentence she
exposed herself to is not excessive.
[77]
Moreover, I am of the view that the RPD adequately
analyzed the evidence before it regarding detention conditions in Algeria. I am
also of the view that the expert witness’s testimony was adequately considered with
respect to the assessment of the risk of torture which the female applicant would
face. Thus, notwithstanding this comparison, the RPD’s finding that “none of these consequences to be endured by the
claimant upon her return to Algeria constitute persecution, discrimination, or
a threat to her basic human rights in a fundamental way” appears
reasonable to me in respect of the facts and the law.
D.
The best interests of the children
[78]
I find it entirely
reasonable that the multiple proceedings instituted by the
husband in Algeria and in Canada indicate that the children are precious to him.
[79]
As for the consideration of the best interests
of the female applicant’s children, the Federal Court of Appeal, in Canada (Citizenship
and Immigration) v Varga, 2006 FCA 394, at paragraph 13 [Varga], states:
Neither the Charter nor
the Convention
on the Rights of the Child
requires that the interests of affected children be considered under every
provision of IRPA: de Guzman v. Canada (Minister of Citizenship and
Immigration), [2006] 3
F.C.R. 655, 2005 FCA 436 at para. 105. If a statutory scheme provides an
effective opportunity for considering the interests of any affected children,
including those born Canada, such as is provided by subsection 25(1), they do
not also have to be considered before the making of every decision which may
adversely affect them. Hence, it was an error for the Applications Judge to
read into the statutory provisions defining the scope of the PRRA officer's
task a duty also to consider the interests of the adult respondents'
Canadian-born children.
The jurisprudence establishes that the
teachings in Varga applies to sections 96 and 97 of the IRPA (Kim v
Canada (Citizenship and Immigration), 2010 FC 149 [Kim]; Hernandez
v Canada (Citizenship and Immigration), 2011 FC 703, at paragraph 43). Thus,
as Justice Shore wrote in Kim at paragraph 76:
The Canadian immigration
system provides for several methods by which to gain entry into Canada, one of
which is to be a refugee under section 96. Section 96 provides a strict
definition that is either met or not by the claimant in question. If the
definition is met, then the claimant may be able to enter Canada as a refugee.
If, on the other hand, the definition is not met, then the claimant may not
enter Canada pursuant to that section and other options
become available to him or her. One remaining option is pursuant to
section 25, wherein the Minister in his discretion may grant an exemption
"from any applicable criteria or obligation of" the IRPA. It is under
section 25 that a substantive and thorough
analysis of the best interests of the child is performed. At the stage of a
section 96 application, it is sufficient that the best interests of the child
are taken into account procedurally, as directed
by the Guidelines. The Court must reiterate that the
best interests of the child cannot shoehorn a refugee claimant into the section
96 definition if the child's claim would otherwise be rejected, but it can
influence the process which leads to that decision.
[80]
In this case, I am of the view that the best
interests of the female applicant’s children pursuant to the application of
sections 96 and 97 of the IRPA and Guideline 3 was adequately taken into
account. The RPD considered the female applicant’s allegations pertaining to
the fact that she might be separated from her children following her return to Algeria,
but concluded that the two children are also precious to their father.
[81]
Moreover, it is under section 25 of the IRPA
that an exhaustive and complete analysis of the best interests of the female applicant’s
two children may be conducted.
VII.
Conclusion
[82]
I conclude that this application for leave and for
judicial review must be dismissed.
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