Docket: IMM-5529-14
Citation:
2015 FC 581
Ottawa, Ontario, May 5, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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BAHI I KHAITH
ABDALGHADER AND
NAEMA M SALEH
OTHMAN
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application by Bahi I Khaith Abdalghader
[the Applicant] and Naema M Saleh Othman [the female Applicant] for judicial
review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision of the Refugee
Protection Division [RPD] dated March 11, 2014. The RPD held that the
Applicants were neither a Convention Refugee nor persons in need of protection
within the meaning of sections 96 and 97 of IRPA.
II.
Alleged Facts
[2]
The Applicants married in May 2008 and are from
Libya.
[3]
The Applicant claimed that he and his family
were subjected to discrimination, searches, beatings and death threats by the
Qaddafi regime ever since he was a child.
[4]
The Applicants left Libya for Canada in December
2008 because the female Applicant had obtained a bursary from Libya. The
Applicants were issued visas.
[5]
The Applicants returned to Libya in June 2010
and came back to Canada on September 13, 2010.
[6]
From February to October 2011, the Applicants
participated in about ten (10) demonstrations against the Qaddafi regime in
Ottawa, where they alleged to have been filmed and threatened by officers of
the Qaddafi government.
[7]
The Applicant also claimed to have been sexually
abused in the past, once he was fourteen years old and again at the age of
twenty two years old.
[8]
They claimed refugee protection in May 2011. The
RPD rejected the claim on March 11, 2014. This is the decision under review.
III.
Impugned Decision
[9]
The RPD first mentioned that the female
Applicant is basing her refugee protection claim on that of her husband, the Applicant.
They claimed a fear on the ground of a political opinion, more specifically a
fear of the Qaddafi’s regime’s supporters. The RPD did not find the Applicants
credible or that they demonstrated that they have a subjective fear.
[10]
The RPD also determined that if the Applicants
truly feared the Qaddafi regime, they would not have voluntarily returned to
Libya in June 2010 and would not have waited until May 2011 to make their
refugee claims. The RPD added that the documentation presented showed that the
Qaddafi supporters are the ones who are being targeted and not the other way
around.
[11]
With regards to the female Applicant, the RPD
wrote that she expressed fear at the hearing for her daughter, a Canadian
citizen born on July 2011, as she believes she would be the victim of racism,
given the Applicant’s Egyptian origins and also because her parents have not
accepted her marriage with the Applicant. The RPD explained that since this
fear concerns the daughter and not the female Applicant, it would not be
analysed, because the daughter is a Canadian citizen and consequently did not
claim refugee protection.
[12]
The RPD finally explained that the Applicant
claimed a second component to his fear of returning to Libya, namely having been
sexually assaulted on two occasions in Libya. The Applicant did not want his
wife, the female Applicant, to be aware of this. At the request of counsel, the
RPD agreed that she leave the hearing room during the Applicant’s testimony on
this issue. The Applicant explained that he never told anyone about these
incidents, never filed a complaint and never sought any help neither in Libya
nor in Canada in relation to these incidents. On this second component of the Applicant’s
claim, the RPD found the Applicant credible. Because the assailants of the
second assault lived close by to the Applicant and would threaten him in the
streets, the RPD assessed the possibility of an internal flight alternative
[IFA] in Libya and determined that an IFA existed in Tripoli.
[13]
For the reasons above, the RPD rejected the
Applicants’ refugee claims.
IV.
Parties’ Submissions
[14]
The Applicant submits that the RPD did not
identify any test with regards to a possible IFA and failed to apply any test
with respect to this issue. The Applicant further submits that the RPD failed
to address this issue altogether. The Respondent replies however that the RPD clearly
applied the two prong test for finding an IFA in Libya.
[15]
The Applicant also submits that the RPD failed
to address the non-existing state protection in Libya due to the civil war and
breakdown of state structures, such as in Tripoli, where the RPD stated that
the Applicant has an IFA. The Respondent however states that the RPD is entitled
to base its decision on a determinative issue, such as an IFA.
[16]
The Applicant further argues that the RPD failed
in assessing the psychological report of the Applicant in a “general sense” only. The Respondent states that the
RPD explicitly considered the psychological report and adds that such reports
are rarely relevant to an IFA finding. In reply, the Applicant argues that the
Respondent’s position on the psychological report is based on an obiter comment
from Justice Rothstein in Brar v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 35, 159 FTR 110.
[17]
The Applicant also argues that the RPD failed to
consider that the Applicants would bring their daughter with them in Tripoli, a
place the Government of Canada has deemed unstable. The Applicant argues at the
same time that due to the dangerous country conditions in Libya, the Applicants
would be faced with the prospect of leaving their daughter behind. The
Applicant argues that either of those scenarios renders the possible IFA
unreasonable.
[18]
The Applicant finally submits that the RPD’s
decision breaches the fundamental values enshrined in the Canadian Charter
of Rights and Freedom, being Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982, 1982, c 11 (UK) [RSC, 1985, Appendix
II, No 44] [the Charter], where the decision to reject the
Applicants’ refugee claim on the basis of an IFA in Tripoli engaged the values
of respect for the inherent dignity and security of the person. They submit
that the RPD decision breaches the Charter values and rights enshrined
in section 7 of the Charter.
[19]
The Respondent also submits that the Applicants
improperly included new evidence on country conditions that post-dates the RPD
decision that was not before the RPD. In its reply, the Applicants state that
while the travel advisory document was updated on August 6, 2014, the content
still reflects the seriousness and unstable situation in Libya that was present
at the time of the hearing.
V.
Issue
[20]
The Applicants did not contest the first part of
the RPD decision regarding their fear of the Qaddafi regime supporters in Libya.
Therefore, after having reviewed the parties’ submissions and respective
records, the only issue to addressed in this judicial review is as follows:
1. Is the RPD’s analysis of an IFA in Libya reasonable?
VI.
Standard of Review
[21]
The standard of review applicable to the RPD
decision regarding the existence of an IFA is that of reasonableness (Istenes
v Canada (Minister of Citizenship and Immigration), 2014 FC 79 at para 11 [Istenes];
Smirnova v Canada (Minister of Citizenship and Immigration), 2013
FC 347 at para 19). The Court shall only intervene if it concludes that the
decision is unreasonable, and falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
VII.
Analysis
[22]
The two-prong test applicable in an IFA analysis
is as follow:
- The RPD must be satisfied, on a balance of probabilities, that
there is no serious possibility of the Applicant being persecuted in the
part of the country in which it finds an IFA exist; and
- That the
conditions in that part of the country are such that it would not be
unreasonable for the Applicant to seek refuge there (Chowdhury v Canada
(Minister of Citizenship and Immigration), 2014 FC 1210 at para 22 [Chowdhury];
Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589; Katinszki v Canada (Minister of Citizenship and
Immigration), 2012 FC 1326 at para 11; in Rasaratnam v Canada (Minister
of Employment and Immigration), [1992] 1 FC 706, [1991] FCJ No 1256 at
paras 4, 6-7).
The burden of proof to demonstrate that no
IFA exists in Libya lies with the Applicant (Istenes, above at para 12; Chowdhury,
above at para 24).
[23]
The Applicant argues that the RPD erred because
it did not state the IFA test. Although this is true, the RPD’s presentation of
its analysis demonstrates that it applied the correct test: the RPD first
determined that the Applicant would not be persecuted if he was to relocate to
Tripoli and then found that it would not be unreasonable for the Applicant to
relocate there (Applicant’s record [AR] page 8 at paras 33 and 34). That being
said, the RPD however erred in its application of the test since it did not
assess the country conditions in Libya, or more specifically in Tripoli, where
the RPD determined that the Applicant had a viable IFA. The RPD simply stated
that:
[T]he documentary evidence does not indicate
any physical or regulatory obstacles to such a relocation. The male claimant is
trained as a teacher and has practised this profession in Libya. He also works
in the delivery business in Canada. In these circumstances, the panel is of the
opinion that the male claimant could settle in the capital, earn a reasonable living
and find housing there (AR, RPD decision page 9 at para 38).
[24]
The documentary evidence referred to by the RPD
above refer to Exhibit C-12 of the Applicant’s refugee application, which is
limited to pictures, emails and articles. The RPD however had a duty to be
knowledgeable of the country conditions of Libya, for which it is making a
determination (Adan v Canada (Minister of Citizenship and Immigration),
2011 FC 655 at para 51, citing Saifee v Canada (Minister of Citizenship and
Immigration), 2010 FC 589). A review
of what was before the RPD with regards to country conditions shows that Libya
was a country in struggle, social upset and general uncertainty at the time of
the hearing. As the new evidence demonstrates (see our comments in the
following paragraph), the situation got worse. The RPD decision is totally
silent on this in its analysis of the second prong of the IFA test.
[25]
Although I agree with the Respondent that the
Applicant tried to improperly include new evidence on country conditions in Libya,
with regards to Exhibits D, G and H from the Applicant’s Record, Exhibits that
all postdates the RPD decision, and also did not make clear whether Exhibits E
and F from the Applicant’s Record, which predate the RPD decision, were
presented before the RPD as they are not part of the Certified Tribunal Record,
the non-existent analysis of country condition in Tripoli, or in Libya as a
whole, in the IFA assessment renders the decision unreasonable. The
intervention is thus warranted.
[26]
The RPD also failed to assess the impact of the
Applicants’ Canadian minor child in its assessment of the IFA. Indeed, this
Court has recognised that the separation of family members may be unreasonable
(Calderon v Canada (Minister of Citizenship and Immigration), 2010 FC
263 at paras 17-20). With regards to the Applicants’ daughter, earlier in the
decision the RPD simply stated, in its assessment of the Applicants’ fear of
Qaddafi regime supporters, and more specifically in its evaluation of the
female Applicant’s fear, that “[…] [S]ince this fear
does not concern the female claimant, but rather her daughter, who was born in
Canada and is not claiming refugee protection, it will not be analysed as part
of their claim” (AR, RPD decision page 7 at para 30). Other than this
statement, the RPD did not assess the impact of its decision on the Applicants’
daughter whatsoever. The submissions of the Applicants’ counsel before the RPD
did not raise this argument. As mentioned above, the RPD knew of the existence
of the minor child but decided not to take it into consideration for the IFA
determination. In such a case, in light of the jurisprudence, the RPD should
have dealt with the issue of separation for the child as it knew that it was
one of the options to be considered. This is unreasonable and warrants the
intervention of this Court.
[27]
With regards to the psychological report, the
RPD mentioned that it supported the Applicant’s allegations of past abuse, but
did not consider this report in its analysis of a viable IFA. This Court has however
said that psychological evidence is central to the assessment of a viable IFA (S.O.
v Canada (Minister of Citizenship and Immigration), 2011 FC 1002 at para
13, citing Cartagena v Canada (Minister of Citizenship and Immigration),
2008 FC 289 at para 11). It should therefore have been dealt with by the RPD.
[28]
As the two (2) paragraphs on the reasons for the
IFA show, the RPD did not make an analysis for the second prong of the test. It
limited itself to general statements without really looking at the personal
situation of the Applicants or at the general country conditions in Libya. In
such a case, if the reasons are succinct to the point where a reviewing court
cannot understand why the RPD made its decision and do not permit it to
determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are not met (see Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 at para 16) and the intervention of the reviewing court is
warranted. This is the case here.
[29]
Based on the above, there is no need to assess
the Applicant’s claim to a breach of his Charter rights under section 7 of the Charter.
It is also to be noted that at no time was it submitted as an argument by
counsel of the Applicants before the RPD.
VIII.
Conclusion
[30]
The RPD erred in its application of the test for
a viable IFA in Tripoli. The RPD did not assess the country conditions in
Tripoli and did not take into account the personal situation of the Applicants.
The intervention of this Court is thus warranted.
[31]
The parties were invited to submit questions for
certification, but none were proposed.
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