Docket: IMM-3955-15
Citation:
2016 FC 660
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 14, 2016
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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ATEF ASSAF
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SUZANNE GHORAYEB
CHRISTIANNE ASSAF
GIO ASSAF
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants, Atef Assaf, his wife
Suzanne Ghorayeb, and their children Christianne Assaf and Gio Assaf,
are Lebanese citizens from Beirut. They are contesting a decision rendered on
March 5, 2015, by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board of Canada (IRB), which rejected their claim for refugee
protection because they neither had Convention refugee status nor were persons
in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Mr. Assaf and his family made a claim for
refugee protection because they feared they would be persecuted by “Syrian elements” or suffer harm should they return to
Lebanon. In Beirut, Mr. Assaf worked as a goldsmith and a medical
technician and also ran a cell phone store. From December 2013 to March 2015,
Mr. Assaf and his family were allegedly targeted by Syrian individuals
apparently connected to the Hezbollah. These individuals apparently demanded
discount phones, then assaulted and robbed Mr. Assaf, then threatened Mr. Assaf
and his family, even after Mr. Assaf changed his phone number and closed
his phone store.
[3]
The RPD rejected the claim for refugee
protection submitted by Mr. Assaf and his family because their fear of
persecution and their allegations were not credible, they did not describe a
personalized risk, and in any case, they had a viable internal flight
alternative [IFA] in Jounieh, Lebanon. Mr. Assaf and his family are
claiming that the RPD's decision is unreasonable, since it wrongly concluded
that they had a viable IFA, it had no reason to doubt their credibility, and
their risk was not simply general. They are requesting a judicial review of the
RPD's decision and asking this Court to set aside this decision and order
another RPD panel to re-examine their application.
[4]
Having examined the evidence available to the
RPD and the applicable legislation, I see nothing that allows me to set aside
the RPD's decision. In its decision, the RPD took into account the evidence,
and its conclusions are justifiable based on the facts and law and clearly fall
within the range of possible, acceptable outcomes under the circumstances. For
the following reasons, I find that the RPD reasonably concluded that there is
an IFA for Mr. Assaf and his family, and this conclusion is decisive in
this case. Consequently, I must dismiss the Assaf family's application for
judicial review. Since the conclusions on the existence of a viable IFA are
sufficient to dismiss the application for judicial review made by Mr. Assaf
and his family, the other reasons suggested by Mr. Assaf and his family
for the rejection of the RPD's decision do not need to be examined.
II.
Background
A.
The Facts
[5]
In December 2013, five young men, including
two individuals named Abou Tarek and Abou Steif, allegedly entered
Mr. Assaf's store and demanded that he sell them discount phones. An
altercation followed between Mr. Assaf and one of the men and was stopped
only by the arrival of curious neighbours. The police apparently advised
Mr. Assaf not to file a complaint because they was unable to protect him
from these individuals who were from Syria and apparently connected with
Hezbollah.
[6]
In January 2014, Mr. Assaf was
allegedly intercepted while driving. Two cars blocked the road and several individuals
got out, including Mr. Tarek and Mr. Steif, who violently beat Mr. Assaf
and stole money and cell phones from him. Afterward, Mr. Assaf says he
received threatening phone calls, which continued even after he changed his
phone number and closed his phone store. In March 2014, threats were allegedly
uttered against his family.
[7]
In June 2014, Mr. Assaf moved into his
mother's home with his family, then they left Lebanon for the United States at
the end of the month. In July 2014, Mr. Assaf and his family made a
claim for refugee protection at the Canadian border.
B.
The RPD's decision
[8]
The RPD rejected the claim for refugee
protection because there was no serious probability of Mr. Assaf and his
family being persecuted in Lebanon. The RPD does not find it credible that Mr. Assaf
and his family were threatened after Mr. Assaf's phone store was closed in
February 2014, although there is no doubt about the plausibility of the
altercations that occurred in December 2013 and January 2014. First, the
RPD finds that the time Mr. Assaf and his family waited before leaving
their family home in Beirut suggests there was no serious threat. Second, the
RPD has doubts about the late complaint Mr. Assaf filed with the Lebanese
police, just three days before Mr. Assaf and his family left the country,
when they already had their American visas. What is more, the complaint makes
no mention of the January 2014 incident or of the threats to kidnap two of
the family's children. Third, the RPD does not believe that the “Syrian elements” had sufficient motivation to
threaten the Assaf family outside Beirut and notes that there is no evidence
that Mr. Assaf's attackers were members of Hezbollah.
[9]
The RPD also finds that there is no prospective
risk under paragraph 97(1)(b) of the IRPA since, should the Assaf
family return to Lebanon, the risk would be general and not personal. The RPD
noted the situation in Lebanon, where Syrian refugees now make up over a
quarter of the population. This massive arrival of thousands of Syrians is
often used to explain the significant increase in criminal activity observed in
Lebanon recently. The RPD notes therefore that Mr. Assaf was a victim of
criminal acts simply because he sold a highly desirable commodity.
[10]
Fourth, the RPD is of the opinion that the Assaf
family has a viable IFA in the city of Jounieh, where Mr. Assaf's sister
lives. According to the RPD, there is no evidence that the “Syrian elements” would have the means to find the
Assaf family in Jounieh. Additionally, it is not unreasonable to suggest that
the Assaf family move to Jounieh, where they could live with Mr. Assaf's
sister or buy a house, and where Mr. Assaf could easily find work given
his experience in three different fields.
C.
Standard of review
[11]
It is well established that the standard of
reasonableness applies to the RPD's conclusions on the existence of an IFA (Emezekie
v Canada (Citizenship and Immigration), 2014 FC 922 at paragraph 24;
Singh v Canada (Citizenship and Immigration), 2014 FC 269 at
paragraph 8; Smirnova v Canada (Citizenship and Immigration), 2013 FC 347
at paragraph 19). This standard also
applies to credibility (Ramirez Martin v Canada (Citizenship and
Immigration), 2010 FC 664 at paragraph 11) and the analysis
of the present or future objective risk (Llorens Farfan v Canada
(Citizenship and Immigration), 2011 FC 123 at paragraph 12)
and whether it is generalized or personal (Fenek v Canada (Citizenship and
Immigration), 2012 FC 178 at paragraph 14).
[12]
In judicial review, the standard of
reasonableness requires the decision to be justifiable, intelligible and
transparent and to fall within the range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] at paragraph 47).
III.
Analysis: was the RPD wrong to conclude that the
Assaf family had a viable IFA in Jounieh?
[13]
The Assaf family states that, according to the
evidence, the “Syrian elements” are connected to
Hezbollah and are therefore able to find them anywhere in Lebanon. They remind
us that Lebanon is a small country and that they would have to live in hiding
to avoid being found. They are therefore claiming that the RPD was wrong to
conclude that there is a viable IFA in Jounieh and failed to correctly apply
the two-pronged test established in the case law for this question (Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC 589
(FCA) [Thirunavukkarasu]).
[14]
I do not agree with the Assaf family's
arguments.
[15]
The existence of an IFA can be a determining
factor for a claim for refugee status (Fedonin v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 1684 at paragraph 2;
Singh Multani v Canada (Citizenship and Immigration), 2012 FC 734
at paragraph 13; Thaneswaran v Canada (Citizenship and Immigration),
2007 FC 189 at paragraph 32). The conclusion that an IFA exists
can indeed be enough to deny an application for judicial review (Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706
(FCA) [Rasaratnam] at paragraph 8). This is the case here.
[16]
The concept of an IFA is based on a two-pronged
test. First, the RPD must be convinced, based on a balance of probabilities,
that there is no serious risk of the claimant being persecuted in the part of
the country where there is an IFA; in other words, the situation in the part of
the country where the claimant could have sought refuge must be safe enough for
him or her to enjoy fundamental human rights. Second, the situation in that
part of the country must be such that it is not unreasonable for the claimant
to seek refuge there, given all of the circumstances and his or her situation (Rasaratnam
at paragraph 10; Thirunavukkarasu at paragraph 12).
[17]
As I indicated in Deb v Canada (Citizenship
and Immigration), 2015 FC 1069 at paragraphs 14–15, an IFA
analysis is that international protection can only be provided if the country
of origin cannot offer adequate protection throughout its territory to the
person claiming refugee status. The onus rests upon the applicants to prove, on
the balance of probabilities, that they risk a serious possibility of
persecution throughout their entire country of origin.
[18]
To establish the merit of their claim for
Convention refugee status, Mr. Assaf and his family had to demonstrate
that there was a serious possibility of them being exposed to persecution
anywhere in their country of origin, and not only in part of Lebanon. The
burden of proof therefore fell to Mr. Assaf and his family to establish
that it was objectively unreasonable for them to seek refuge in Jounieh, the
area designated as safe by the RPD. This is a heavy burden, and it requires
evidence of adverse conditions that would jeopardize the life and safety of the
Assaf family if they moved to Jounieh (Ranganathan v Canada (Minister of
Citizenship and Immigration), [2001] 2 FC 164 (FCA) [Ranganathan]
at paragraph 15; Iqbal v Canada (Citizenship and Immigration), 2014 FC 415
at paragraph 18). However, in this case, I am of the opinion that the RPD
was right to conclude that the Assaf family failed both prongs of the test
described in Thirunavukkarasu.
[19]
As for the first prong, the RPD concluded that
nothing proved that the “Syrian elements” would
look for the Assaf family in Lebanon outside of Beirut. In addition, the RPD
determined that, since the Assaf family has now left Beirut and Mr. Assaf
no longer has his store, it would not be logical for the persecutors (who
really just wanted low-price cell phones) to pursue them. Under these
circumstances, it is entirely possible for the RPD to conclude that the
activities of the presumptive persecutors of the Assaf family are more on a
local scale and that they would not have the resources or contacts to pursue
Mr. Assaf and his family in Jounieh.
[20]
As for the second prong, I am of the opinion
that it was reasonable for the RPD to expect Mr. Assaf and his family to
move to Jounieh, seeing as they have family there (Mr. Assaf's sister) and
Mr. Assaf could easily find a job given his three areas of expertise. I
also note (as did the Minister) that Lebanon's small size is not a barrier to
the existence of a viable IFA (Mohamad Jawad v Canada (Citizenship and
Immigration), 2012 FC 232 at paragraphs 43–44). For the
second prong, the RPD examined the Assaf family's personal situation and
concluded that it would not be unreasonable for them to move to Jounieh. The
RPD saw no concrete evidence that the “Syrian elements”
identified by Mr. Assaf are in fact associated with Hezbollah. In the
RPD's finding based on the evidence available to it, there is nothing that
allows me to conclude that the RPD's decision is not within the range of
possible, acceptable outcomes under the circumstances.
[21]
Additionally, humanitarian and compassionate reasons,
such as the loss of a job, a reduction in the quality of life or the loss of
aspiration do not suffice to conclude that there is no IFA. These reasons,
whether considered alone or with other factors, cannot constitute a risk of
persecution unless they cause conditions that would jeopardize the life or
safety of an individual (Ranganathan at paragraph 15; Thirunavukkarasu
at paragraph 14). I agree with the RPD that the Assaf family's arguments
about the difficulties they would face were they to move to Jounieh fail to
demonstrate that taking refuge there would be in any way unreasonable. There is
no evidence that their life or safety would be at risk there.
[22]
The question this Court must decide on is
whether the RPD's decision on the IFA was reasonable. This means that the role
of this Court is not to re-examine the evidence available to the RPD nor to
replace the RPD's conclusions with its own. We must defer to the conclusions of
the RPD, since when it decides whether an individual is a Convention refugee or
a person in need of protection under sections 96 and 97 of the IRPA, this
decision is part of its field of expertise. This Court therefore has a limited
role, and in this case, this Court can only rule on the existence of an IFA if
the RPD's conclusion on this matter lacks justification, transparency or
intelligibility or does not fall within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir at
paragraph 47).
[23]
In my opinion, Mr. Assaf and his family
have not demonstrated that the RPD's conclusion that there is an IFA meets
these stringent criteria established in the case law or that the RPD made an
error requiring the intervention of this Court.
IV.
Conclusion
[24]
For all of these reasons, the RPD's decision is
a reasonable outcome based on the law and the evidence. Based on the standard
of reasonableness, the decision under judicial review must only be intelligible
and transparent and fall within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law. This is the case here.
Consequently, I must dismiss this application for judicial review.
[25]
None of the parties suggested a question of
general importance to be certified. I agree that there is none.
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